Electronic Book Review - copyrighthttp://www.electronicbookreview.com/tags/copyright
enFree as in Free Culture: A Response to Francis Ravenhttp://www.electronicbookreview.com/thread/criticalecologies/pervasiverip
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<div class="field-item even">Benjamin J. Robertson</div>
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<div class="field field-name-field-publication-date field-type-datetime field-label-hidden"><div class="field-items"><div class="field-item even"><span class="date-display-single">2006-03-17</span></div></div></div><div class="field field-name-field-riposte-to field-type-node-reference field-label-inline clearfix"><div class="field-label">Riposte to:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/thread/criticalecologies/pervasive">Free Culture and Our Public Needs</a></div></div></div><div class="field field-name-field-source-url field-type-link-field field-label-inline clearfix"><div class="field-label">Source URL:&nbsp;</div><div class="field-items"><div class="field-item even"></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>I will allow my title to be misleading. I do not intend to respond directly to Francis Raven’s review beyond a few remarks at the outset of this note. At the risk of being blunt, and in the interests of avoiding beating around the bush: Francis Raven entirely misses the point of Lawrence Lessig’s <span class="booktitle">Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity</span>. He does not in any way address what Lessig argues is the book’s point, what I understand to be perhaps the most significant issue facing American and global culture in the early twenty-first century: the manner in which the Internet specifically and digital technologies generally have affected the ability of individuals to access, create, and distribute culture and the legislative response to these changes in the form of stricter intellectual property law.</p>
<p>Raven’s lack of engagement with Lessig’s most important ideas is disturbing. He correctly identifies Lessig’s desire to reduce the length of copyright instantiated in the Sonny Bono Copyright Term Extension Act of 1998: the life of the author plus seventy years for individuals or ninety-five years for corporations. Lessig claims that the dramatic increase in length of copyright over the last few decades has led to a smaller, less robust public domain, as Raven also notes. However, Raven does not address why this matter has taken on increasing urgency for Lessig, namely that recent developments in technology - including digital video and audio recording equipment; image, sound, and video editing software; and especially the distribution mechanisms that the Internet enables - potentially mark a watershed moment for human creativity. This moment in Lessig’s argument may never come to pass, however, as intellectual property law (such as the Digital Millennium Copyright Act) and technological initiatives (Digital Rights Management, trusted computing, forms of malware such as Sony’s rootkit, etc.) have been and continue to be developed and deployed. The result is that intellectual property monopolies are protected for private interests at the expense of the public domain; in short, most of our society is unable (in either a legal or literal sense) to manipulate, build upon, critique, or in any way interact with any culture produced since the early 1920s. Texts such as DJ Danger Mouse’s <span class="booktitle">The Grey Album</span> and The Kleptones’ <span class="booktitle">A Night at the Hip-Hopera</span> should mark a new era in music production and distribution.<cite id="note_1">Danger Mouse’s <span class="booktitle">The Grey Album</span> is a “mashup” of The Beatles’ <span class="booktitle">White Album</span> and Jay-Z’s <span class="booktitle">The Black Album</span>. Danger Mouse did not obtain permission to sample from his sources, assuming (almost certainly correctly) that permission would be denied. Upon release in early 2004 Danger Mouse and websites offering the album for download were served with cease-and-desist letters from EMI, the record label that owns the rights to the White Album. Similarly, The Kleptones’ <span class="booktitle">A Night at the Hip-Hopera</span> - an album that offers an historical look at hip-hop culture as well as a critique of copyright law and US politics by mashing together rap and R&amp;B songs with Queen - was also the subject of legal action when it was released in late 2004. Lessig’s argument regarding these two albums would be that they in no way detract from their source material. If anything they enhance the appeal of that material to an audience that may otherwise never be exposed to it. Moreover, the artists behind these texts have expanded our culture by interacting with it in a manner facilitated by digital technologies, including the Internet. The new media literacies behind these creations are in danger of disappearing if Lessig’s fears come to pass. I will have more to say on this subject below. I will not link to sites that offer <span class="booktitle">The Grey Album</span> or <span class="booktitle">A Night at the Hip-Hopera</span> for download as they are, according to the law, illegal. However, a quick Google search will provide those interested with links to these materials.</cite> They should introduce a new generation of listeners to bands such as The Beatles and Queen. They should be acknowledged as building upon culture and producing more of it to be built upon. Instead they have been criminalized, made the subject of cease-and-desist letters and legal proceedings. What is important to remember in this context is not simply that we need to address the inequities of contemporary copyright law, but that we must educate ourselves of the cultural implications of new technologies so as to keep those technologies free for public use and the public good.</p>
<p>Raven does not recognize this aspect of Lessig’s argument, one that Lessig takes pain to make clear in the preface to <span class="booktitle">Free Culture</span>. I will return to this issue below in order to make clear why Lessig’s arguments are important in the early twenty-first century. First, however, I wish to point out an inaccuracy in Raven’s general discussion of copyright law, one that masks a point that is crucial for the discussion at hand. I wish to expose this inaccuracy not so much to criticize Raven, however, as to demonstrate how a lax attitude towards the specifics of copyright law has the potential to confuse the general public about how copyright works and thereby obfuscate the implications of the current debates over intellectual property.</p>
<p>Raven writes of the “before” and “after” of copyright:</p>
<p class="longQuotation">To avoid confusion, I will call works that have the potential to be copyrighted “intellectual objects” and use the term “copyrighted works” for such objects after they are copyrighted. Intellectual objects, however, are not objects in the ordinary sense of the word. A book is not an intellectual object; a novel (in its broadest sense) is. An individual book is an instantiation of the novel which is the intellectual object, a conceptual rather than a physical entity.</p>
<p>To state that Raven’s claims here are misleading would be itself misleading. To be clear: there is no such thing as “before” and “after” copyright. Raven’s term, “copyrightable goods,” is inexact to the point of being wholly inaccurate and is a false heuristic that in no way mirrors the reality of copyright law. US Code Title 17, 102 reads as follows:</p>
<p class="longQuotation">(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:</p>
<p class="longQuotation">(1) literary works;<br />
(2) musical works, including any accompanying words;<br />
(3) dramatic works, including any accompanying music;<br />
(4) pantomimes and choreographic works;<br />
(5) pictorial, graphic, and sculptural works;<br />
(6) motion pictures and other audiovisual works;<br />
(7) sound recordings; and<br />
(8) architectural works.</p>
<p class="longQuotation">(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.</p>
<p>In other words, once something (a poem, a novel, a play, a song, a film, a photograph, a building) is expressed in some tangible medium that makes possible reproduction (whether a literal reproduction or a reproduction through another representative medium, such as a photograph of a copyrighted work of art) that something is copyrighted. (Unlike the processes for obtaining patents and registering trademarks, there is no paperwork to file for copyright; once it exists in a “copyrightable” form, it is copyrighted.) Take the example of a poem. When a poet is merely considering a poem, turning it over in her head, there is nothing about the poem that is copyrighted or copyrightable. It has not yet been expressed and cannot therefore be copied. Without the possibility of copying there can be no copyright (again, understanding that by “copying” the law does not simply refer to literal reproduction, but also representation). Once the poem is written down in a notebook, saved to a hard drive, or scribbled on the back of a napkin while eating lunch, the poem is copyrighted. To speak of before and after is to speak of a false dichotomy. “Before” can only refer to a moment prior to the existence of a copyrightable thing, as in “before there is anything to copyright.” The idea of the poem in the poet’s head is not copyrightable; even the complete poem memorized in the poet’s head is not copyrightable. Likewise, “after” can only refer to the after-coming-into-being of the copyrightable thing, a point at which it is always already copyrighted.</p>
<p>Thus, by stating that books (physical objects) are not “intellectual objects,” Raven misses the point of Title 17. A “novel” that is instantiated in a “book” is only an intellectual object (i.e. an object that can be copyrighted) <span class="lightEmphasis">in its capacity as the very instantiation in question</span>. In short: no instantiation = no copyright - possible, potential, real, actual, or otherwise. Prior to the instantiation not only is there no copyright, or potential for copyright, but there is nothing (or no thing) to copyright in the first place. If by “intellectual object” Raven means “idea” (e.g. the idea of a poem in the poet’s head prior to its inscription in a tangible medium), fine. However, the law makes clear that ideas cannot be copyrighted, only their expression. This rule applies both before and after inscription. Prior to inscription (a term I am using in the broadest possible sense to mean the capturing of an idea in a medium of expression, as per the list Title 17 provides), the idea is only an idea which, again, cannot be copyrighted. After inscription, the idea is still without copyright protection as only the instantiation is copyrighted. Thus the law protects copyrighted goods from being <span class="lightEmphasis">copied</span> (a physical process) in another tangible medium (whether as a photocopy or as an exact reproduction of, for example, a book). The materiality of the object is a necessary, if not instrumental, component of the copyright. While Raven is correct to assert that individual books are not what are copyrighted per se, those very individual expressions, in their totality, are what copyright requires for it to function in accordance with Title 17.</p>
<p>If Raven’s statements were merely misleading or even inaccurate, I would not be as forceful in my rejection of them. However, in their inaccuracy they create (or rather maintain) a myth about copyright, namely that it involves a process other than the creative act. Although patents require a long and expensive application process, which makes them all but unattainable for private citizens, copyright exists from the moment the work in question is fixed in a tangible medium. There are, to be sure, procedures for registering copyright with the Library of Congress, but such registration is only a means by which to officially record the copyright and is in no way a creation of copyright itself. Lessig’s desire for a free culture can only be achieved if the public understands what their rights are, specifically that they have the same right to access culture as do large corporations with vast legal and financial resources. Most importantly, the myth of the copyright process creates in people the sense that intellectual property is not something that will ever concern them directly. If it requires lawyers and forms with obscure numerical titles (think W-2 or 1040-A), people will shy away. This lack of engagement with issues of intellectual property is potentially devastating for not only democracy, as I discuss below, but also for the fight against AIDS (as US corporations take legal action against developing nations in need of cheap, generic medicines), the rights of indigenous populations (whose ideas are patented, copyrighted, and trademarked by large corporations, despite these ideas’ centuries-old existence), and the creation of artistic works (sampling fees are already astronomical and often prevent the creation of certain types of music, or force music like that made by Danger Mouse and The Kleptones to always already be criminalized). <cite id="note_2">I am well aware that these examples are far more complex than my list implies. For a full discussion of these and other issues see Kembrew McLeod’s <span class="booktitle">Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity</span> (New York and London: Doubleday, 2005). My point is simply that if the public understands copyright, and by extension intellectual property generally, to be outside of its concern, the problems these issues represent will continue to be problems. What all of these problems have in common - with each other as well as the threat to democracy I will discuss next - is that they entrench the status quo as the only possible situation. If those with power control culture - what it is, how we are allowed or able to interact with it, how it is made - they will effectively control the direction society can take. If citizens are not aware of this threat, because they do not understand themselves as the creators and purveyors of culture, the status quo will become further entrenched with little or no recourse.</cite></p>
<p>With that understood, I will now turn my attention away from copyright law generally<cite id="note_3">There are numerous texts to which the interested reader can turn for detailed description and analysis of the history and current implications of intellectual property law. For general discussions of intellectual property law from the “copyleft” movement one could turn to McLeod’s <span class="booktitle">Freedom of Expression</span> (cited in note 2), Siva Vaidhyanathan’s <span class="booktitle">Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity</span> (New York: New York University Press, 2001) and <span class="booktitle">The Anarchist in the Library: How the Clash Between Freedom and Control is Hacking the Real World and Crashing the System</span> (New York: Basic, 2004), or Michael Perelman’s <span class="booktitle">Steal This Idea: Intellectual Property Rights and the Corporate Confiscation of Creativity</span> (New York: Palgrave, 2002). Jessica Litman’s <span class="booktitle">Digital Copyright</span> (Amherst, NY: Prometheus, 2001) offers coverage of the issues surrounding intellectual property in the age of digital reproduction, while J.D. Lasica’s <span class="booktitle">Darknet: Hollywood’s War Against the Digital Generation</span> (Hoboken: John Wiley and Sons, 2005) is comprised of the results of extensive investigative reporting on those who are affected by overly restrictive copyright laws and what some are doing to overcome them (see also Lasica’s project website, <a class="outbound" href="http://www.darknet.com">darknet.com</a>) Lyman Ray Patterson’s landmark 1968 study <span class="booktitle">Copyright in Historical Perspective</span> (Nashville: Vanderbilt UP, 1968) not only marks the beginning of the current trend in intellectual property law scholarship that Lessig inherits, but will provide the interested reader with the background for the contemporary debates in the field by detailing the evolution of copyright since the fifteenth century. Of course, one might also turn to Lessig’s earlier book <span class="booktitle">The Future of Ideas</span> (cited above) for expert descriptions and analysis of what, to this writer, could be the most important issue of our time.</cite> and towards Lessig’s primary focus in <span class="booktitle">Free Culture</span>: the debate over intellectual property in the specific context of the age of technological innovation we inhabit. As the world and its cultures become more and more informational, the ability to access and manipulate information will take on greater significance. However, if information, and by extension culture, is locked up by copyright law and technology, we will lose not only our past, but our future. In short, the idea of democracy is at risk. That Raven fails to even suggest this issue is to my mind a disservice not only to Lessig but to the reader of his review as well. His discussion of Lessig’s proposals for the future of intellectual property laws is an adequate summary of that portion of <span class="booktitle">Free Culture</span>; however, without context for Lessig’s proposals the reader of Raven’s review will be left wondering what the big deal is.</p>
<p>I therefore need to make clear what is at stake in <span class="booktitle">Free Culture</span>, or, rather, I need to allow Lessig to make that clear for himself. The concept of “free culture” is, as one might guess, at the heart of Lessig’s argument, which spans some 300+ pages but is boiled down in his preface to a succinct and cogent two paragraphs. Responding to a critic of his first book, <span class="booktitle">Code and other Laws of Cyberspace -</span> who claims that Lessig’s statements about the effects of the internet overreach in their claims (as we can always escape the Internet by turning off our modems) - Lessig writes:</p>
<p class="longQuotation">Unlike <span class="booktitle">Code</span>, the argument here is not about the Internet itself. It is instead about the consequence of the Internet to a part of our tradition that is much more fundamental, and, hard as this is for a geek-wanna-be to admit, much more important.</p>
<p class="longQuotation">That tradition is the way our culture gets made. As I explain in what follows, we come from a tradition of “free culture” - not “free” as in “free beer” (to borrow a phrase from the founder of the free software movement), but “free” as in “free speech,” “free markets,” “free trade,” “free enterprise,” “free will,” and “free elections.” A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain <span class="lightEmphasis">as free as possible</span> from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a “permission culture” - a culture in which creators only get to create with the permission of the powerful, or of creators of the past. (xiv, original emphasis)</p>
<p>Lessig here, in approximately 200 words and less than two pages into his book, tells us everything we need to know about his project on a conceptual level. Over the course of the next several hundred pages he will elaborate, illustrate, and refine his claims, but the heart of the matter is right here: a democracy depends on the free exchange of ideas - in short, the creation of culture out of the remnants of the past. If the past is allowed to limit innovation, if we have to ask permission every time we want to create art or critique politicians, then we will no longer have a democracy. It is the potential for such a fate that concerns Lessig.</p>
<p>Before I move on to an explanation of this fate, and thereby an analysis of the implications of Lessig’s arguments, I would like to turn briefly to the inspiration for Lessig’s title: Richard Stallman, the “founder of the free software movement.” In <span class="booktitle">Free Software, Free Society</span>, Stallman explains the need for open-source, or “free,” software, and uses a very specific definition of the term “free,” one to which Lessig directly refers in <span class="booktitle">Free Culture</span>: “`Free software’ is a matter of liberty, not price. To understand this concept, you should think of `free’ as in `free speech,’ not as in `free beer’ ” (Stallman 41). The question of “free” is a question of access; if access to a resource is granted neutrally, that resource is free <span class="lightEmphasis">regardless of its cost in dollars and cents</span>. Use of the New York State Thruway, for example, is “free” in Lessig’s and Stallman’s understanding of the term because the price for its use is the same for anyone who uses it whether a driver is white or black, male or female, old or young.</p>
<p>Stallman is specifically concerned with the lack of access inherent in the concept of closed-source software, just as lack of access in a permission culture is what concerns Lessig. In the context of software, Stallman’s worry is that a denial of access to source code will create substandard products and a potential for abuse. For example, as any user of Windows knows (or should know), Microsoft’s wildly successful operating system is “closed source,” or “proprietary.” Otherwise put, Windows users do not have access to the source code which controls how the software functions, behaves, and interacts with other pieces of software (whether legitimate or malicious). Therefore, users cannot always (or perhaps more appropriately ever) be aware of what that software is doing. While this lack of access will most likely not bother many casual users, Stallman finds such limitations problematic: “Proprietary software means, fundamentally, that you don’t control what it does; you can’t study the source code, or change it” (115). Far from being the lamentation of a tech geek, Stallman is here decrying what we used to expect as our rights as consumers and citizens in a free society.</p>
<p>As a consumer I expect the right to dispose of my legally acquired property in any manner I see fit. Stallman puts the debate in terms we can easily understand: “You deserve to be able to cooperate openly and freely with other people who use software. You deserve to learn how the software works, and to teach your students with it. You deserve to be able to hire your favorite programmer to fix it when it breaks” (49). Microsoft Windows is among the most successful operating systems in history. However, computer science students cannot look at it to see how it works; they cannot learn from it. (Imagine an MFA student who was not allowed to study extant paintings by acknowledged masters when learning how to paint.) Culture is thus closed off in educational terms. It is likewise closed off to choice, specifically the choice of how we maintain our property. If Windows breaks, we have no choice of whom to call: it’s Bill Gates or no one. If I want to take apart my legally purchased car and use its parts in another car of my own creation, I should be allowed to do so. Alternatively, if I wish to reverse engineer my car and make improvements upon it, I should be allowed to do so. Finally, if I am incapable of making improvements to my car myself, or if I merely need maintenance for my car, I should be allowed to take it to the person I feel is most qualified to accomplish the task at hand. In the world of proprietary code, however, none of these scenarios is possible. If Windows malfunctions, users cannot fix it except in certain limited manners proscribed by Microsoft. Moreover, users cannot make any improvements to Windows. If they do there is the very real possibility they will be found out as Windows is in the habit of communicating with Microsoft as to its condition (when, for example, it updates its security settings).<cite id="note_4">An example of why such improvements - particularly collaborative improvements, are crucial to software’s success - will prove instructive here. Mozilla Firefox is an Internet browser directed by the Mozilla Foundation and built upon open-source software. Because anyone with an interest can see the source code for Firefox, there are potentially millions of people who will be able to find and report security flaws in the code, flaws which can leave an unpatched computer vulnerable to malicious code in the form of exploit attacks, viruses, spyware, or other threats. By comparison, Microsoft’s Internet Explorer is closed-code. Only Windows employees are allowed to see the code that makes the browser work and as such only a limited number of individuals are able to make improvements to the code. While one might think that the open-source Firefox is more vulnerable to attack than Explorer (because hackers have access to the code), <a href="http://techrepublic.com.com/5208-9592-0.html?forumID=88&amp;threadID=174011&amp;start=0">this study</a> by Brian Livingston on the website <a href="http://techrepublic.com">TechRepublic</a> demonstrates the speed with which Firefox is able to respond to perceived threats as opposed to the glacial pace that Microsoft addresses security flaws in a piece of software that is irrevocably yoked to one of the most common operating systems in the world. “IE suffered from unpatched security holes for 359 days in 2004. According to Scanit, there were only 7 days out of 366 in 2004 during which IE had no unpatched security holes. This means IE had no official patch available against well-publicized vulnerabilities for 98% of the year.” Compare Explorer’s security efforts with those of Firefox: “Mozilla and Firefox patched all vulnerabilities before hacker code circulated. Scanit found that the Mozilla family of browsers, which share the same code base, went only 26 days in 2004 during which a Windows user was using a browser with a known security hole. Another 30 days involved a weakness that was only in the Mac OS version. Scanit reports that each vulnerability was patched before exploits were running on the Web. This resulted in zero days when a Mozilla or Firefox user could have been infected.” While it would be overreaching perhaps to suggest that Firefox being open-source is the only reason for its success on the security front, the article comes close to stating exactly that: “Microsoft employs some of the best software developers in the world. The company enjoys a cash reserve of $35 billion and is highly profitable. Yet a tiny company that builds open-source browser software is making the Redmond giant look foolish and incompetent in securing its products.”</cite></p>
<p>While the rights of car owners to tinker with their cars has not to my knowledge been taken away by law or technology, the rights of owners of Sony’s Play Station Portable (PSP) have been under threat since the device was released in 2004. Within a year of the PSP’s release, hackers (or, given that term’s stigma in the popular press, tinkerers), quickly found other uses for the device than those Sony intended. Added to the PSP were capabilities for internet chatting, accepting transfer of digital video from digital video recording devices, reading electronic books, and running a version of the LINUX operating system.<cite id="note_5">There are several websites devoted to PSP modification including <a href="http://www.psp-hacks.com/">psp-hacks.com</a> and <a href="http://www.psphacks.net/">psphacks.net</a>.</cite> Sony, however, has in each update of the product’s firmware rendered the use of such “homebrew” code impossible. For example, at the release of firmware version 2.5 a Sony spokesperson offered the following <a class="outbound" href="http://www.vnunet.com/vnunet/news/2146205/gamers-crack-sony-psp-software">statement</a> to an online technology news service:</p>
<p class="longQuotation">“The demand and excitement for PSP has been very strong, and in turn consumers have already found many uses for PSP,” a spokesman for Sony’s gaming division told vnunet.com.</p>
<p class="longQuotation">“However, PSP contains robust technology and was designed to run specific applications via the Universal Media Disc or memory card.</p>
<p class="longQuotation">“Consumers should be aware that any hacking or home-brew applications may cause damage to the PSP unit and may void the warranty.”</p>
<p>This statement has since been “translated” by former Electronic Frontier Foundation<cite id="note_6">The <a href="http://www.eff.org/">Electronic Frontier Foundation</a> describes itself as “a group of passionate people - lawyers, technologists, volunteers, and visionaries - working in the trenches, battling to protect your rights and the rights of web surfers everywhere. The dedicated people of EFF challenge legislation that threatens to put a price on what is invaluable; to control what must remain boundless.” See their mission statement <a href="http://www.eff.org/mission.php">here</a>.</cite> consultant <a class="outbound" href="http://www.boingboing.net/2005/11/20/psp_is_unlocked_once.html">Cory Doctorow</a>: “Sony sold you this device, but you still don’t own it. It’s ours, and you’re not allowed to use it in ways that displease us.” Doctorow’s glibness notwithstanding, his analysis is dead on. Despite the fact that a consumer may legally purchase and therefore legally own a Sony PSP, that same consumer is only allowed to use it in a manner of which Sony approves. While Sony no doubt maintains that this restriction is in the interests of business (so that individuals cannot create games that might compete with those produced by multimillion dollar corporations), this argument does not hold up. It is anti-competitive in a capitalist sense, and potentially anti-American in its potential to run afoul of the Constitution.<cite id="note_7">It should be noted that Sony’s business practices have thus far failed. To date, every version of PSP firmware has been cracked. I expect that the day Sony does manage to produce an invulnerable wrapping for its devices will likewise be the day that they lose a not insignificant percentage of their business.</cite></p>
<p>Our right to interact with our property is guaranteed by the Fifth Amendment, which states that no one shall “be deprived of life, liberty, or property, without due process of law.” Taken in its broadest sense, the Fifth Amendment guarantees not only our right to own property, but also, presumably, our right to do with it as we please (with the understanding that we don’t use it to harm others, much in the sense that the freedom of speech does not allow slander or give anyone license to yell “Fire!” in a crowded theater). Of course, the response from Sony and Microsoft is, presumably, that the person who purchases software does not own that software, but rather licenses its use from the software’s producer. Windows is only property for Microsoft, and no amount of “purchasing” will change that. Far from an ownership society, or a free society in Stallman’s cum Lessig’s terms, ours is becoming more and more a permission society in which we must ask to interact with our property and, increasingly, our culture.</p>
<p>Nevertheless, this inability to tinker<cite id="note_8">For additional information and analysis of these issues, see <a href="http://www.freedom-to-tinker.com/">Freedom to Tinker</a>, a weblog written by intellectual property lawyer Edward W. Felten and J. Alex Halderman.</cite> with Windows or the PSP is inconsequential when compared to the ramifications closed code could have for social life beyond the technological. Stallman spells out the true potential harm such software could cause. He writes, “If Microsoft, or the U.S. government, does not like what you said in a document you wrote, they could post new instructions telling all computers to refuse to let anyone read that document” (116). Closed source software potentially inhibits Constitutional rights in a manner far more worrisome than the aforementioned interaction example. Dissent in such a scenario would no longer be something for the government or corporations to react to, forcefully or otherwise. Rather dissent will no longer be possible in the first place as the result of a system designed to prohibit it <span class="foreignWord">a priori</span>.</p>
<p>It is with such Big Brother nightmares in mind that Lessig writes <span class="booktitle">Free Culture</span>. Thus, when he states that the subject of his book is not the Internet he is far from disingenuous, despite his preoccupation with technology. The Internet here is simply the newest (and perhaps most important) in a long line of technologies that have forced a confrontation between the way things have always been done and understood and the potential for the new that is the future of a free culture. (Early in <span class="booktitle">Free Culture</span> Lessig gives two other examples of such technologies: the airplane and FM radio, the former of which forced our understanding of land ownership to change, the latter of which was initially stifled by RCA because it threatened that company’s AM radio empire.) Lessig’s purpose in discussing technology is to argue for a jurisprudence that is able to account for the new, that can change according to the march of innovation. As the Internet influences and modifies the world, the law needs to account for that change and adapt to it. We cannot be held captive by the past, by laws designed to govern a society that could not possibly imagine the world in which we live. The trick, of course, is to create an adaptive legislature and jurisprudence that does not destroy the tenets upon which the United States was founded, as defined in the Constitution and the Bill of Rights. An understanding of the law as adaptive to new situations cannot become a license to deny free speech, a free press, free markets, or free thought. Such an understanding of the law must, instead, be deployed in order to protect those freedoms in the new contexts provided by technological innovation cum social revolution. Otherwise put, we must maintain the democracy that the United States purports to be into the twenty-first century; we must maintain a free culture.</p>
<p>Lessig writes, “[D]emocracy has never just been about elections. Democracy means rule by the people, but rule means something more than mere elections. In our tradition, it also means control through reasoned discourse” (56). This discourse is enabled by new technologies in a manner never before possible. Free weblog services such as <a class="outbound" href="http://www.blogger.com/start">Blogger</a> and <a class="outbound" href="http://www.blogsome.com/">Blogsome</a> (not to mention free weblog platforms such as <a class="outbound" href="http://wordpress.org/">WordPress</a> and <a class="outbound" href="http://www.sixapart.com/movabletype/">Movable Type</a>), free photosharing websites such as <a class="outbound" href="http://www.flickr.com/">Flickr</a>, and free video distribution channels such as <a class="outbound" href="http://video.google.com/">Google Video</a> and <a class="outbound" href="http://www.youtube.com/">YouTube</a> allow for asynchronous communication and debate between like-minded and opposed individuals in a wide range of media formats. Their ease of use and relatively inexpensive nature (as compared to traditional means of publication) lower what Lessig calls the “barrier to expression.” Individuals no longer have to rely on corporate media for information and analysis of events, but can turn to any number of resources online to help them make sense of the world. More importantly, individuals can take part in this analysis directly by commenting on what others have produced or producing content of their own. Additionally, the production of content is not limited to writing in the traditional sense, but is open to all forms of new media literacies including visual and oral texts or some combination thereof. Granted, not all of this content will be worthwhile. Some will, no doubt, be underthought, unremarkable, or downright reprehensible. Such is the price of a free culture. The empowerment that the Internet and related technologies afford, however, far outweigh the potential for abuse. In fact, it is the potential for abuse that makes them so powerful. Likewise, it is the potential threat they pose to those entrenched in old models of content production that is the reason they are under attack.</p>
<p>I will provide a final example of the threat to free culture facing the United States, although there are many more I might mention.<cite id="note_9">These include the proposed VEIL legislation (see story <a href="http://www.publicknowledge.org/node/19">here</a>), Sony’s rootkit (see Cory Doctorow’s timeline of the story at <a href="http://boingboing.net/">Boing Boing</a>: <a href="http://www.boingboing.net/2005/11/14/sony_anticustomer_te.html">Part I</a>, <a href="http://www.boingboing.net/2005/11/17/sony_rootkit_roundup.html">Part II</a>, <a href="http://www.boingboing.net/2005/11/21/sony_rootkit_drm_rou.html%3E">Part III</a>, <a href="http://www.boingboing.net/2005/12/03/sony_rootkit_roundup.html">Part IV</a>, <a href="http://www.boingboing.net/2005/12/16/sony_drm_debacle_rou.html">Part V</a>, <a href="http://www.boingboing.net/2006/02/15/sony_drm_debacle_rou.html">Part VI</a>; see J. Alex Halderman and Edward W. Felten’s paper, “Lessons from the Sony CD DRM Episode,” <a href="http://itpolicy.princeton.edu/pub/sonydrm-ext.pdf">here</a>; see Bruce Sterling’s commentary <a href="http://www.wired.com/wired/archive/14.02/posts.html?pg=5">here)</a>, the broadcast flag (see the Electronic Frontier Foundation and Doctorow’s “3 Minute Guide” <a href="http://www.eff.org/broadcastflag/three_minute_guide.php">here</a>), Digital Rights Management (see EFF’s overview of the issue <a href="http://www.eff.org/IP/DRM/">here</a>), and trusted computing (see Stallman’s essay on trusted computing <a href="http://www.gnu.org/philosophy/can-you-trust.html">here</a> and EFF’s discussion <a href="http://www.eff.org/Infrastructure/trusted_computing/20031001_tc.php">here</a>). Perhaps the most important pending court case having to do with technology and intellectual property is the lawsuit filed by a group of publishers against Google over its Book Search project, which would make contents of print books searchable. For books in the public domain, entire texts would then be available to researchers online. Texts still under copyright would be only partially available (often no more than several pages of a given text). Copyright holders can opt out of the program altogether. View Lessig’s slideshow discussion of the case <a href="http://video.google.com/videoplay?docid=-2756139049520569076">here</a>. Download Lessig’s discussion as a BitTorrent file <a href="http://www.prodigem.com/torrents/download/lessig/lessig-Google.torrent">here</a> (link goes directly to torrent).</cite> The reason I have chosen to deal with this particular case is because it has, at first glance, seemingly little to do with technology. Instead it has to do with trademarks, which have existed long before the Internet and the current debates over intellectual property. H.R. 683, also known as the Trademark Dilution Revision Act, would, in the words of a <a class="outbound" href="http://www.citizen.org/documents/Judiciary%20Committee%20letter%20on%20H.R.%20683.pdf">letter</a> sent to U.S. Senators by a coalition of concerned parties,<cite id="note_10">Including the American Library Association, the Electronic Frontier Foundation, National Video Resources, the Professional Photographers of America, Public Citizen, Public Knowledge, and the Society of Children’s Book Writers and Illustrators.</cite> “threaten[s] to harm consumers as well as artists and other small business owners both by making it more difficult for consumers to refer to big companies by mentioning their trademarks, and by making it more difficult for companies to promote their own products by providing truthful information to consumers about why their products are better.” In other words, this bill, if passed into law, would make it difficult if not impossible to critique products by referring to their trademarks. It would also make other references to trademarks actionable offences. The parties to this letter make clear that they are not against the idea of trademarks in any way, but that these trademarks cannot be held beyond public scrutiny and democratic debate. Moreover, they cannot be held above the culture they permeate. If, as in one example provided in the letter, Don McLean was not allowed to sing about driving his Chevy to the levy, what would have been the effect on his song “American Pie”? McLean was not commenting on Chevrolet, but merely referring to a part of American culture, a culture that should, in Lessig’s argument, be free for all to access and make use of. The Trademark Dilution Revision Act would replace this freedom with a system of controlled access. Given the pervasiveness of trademarks in our culture, should this bill pass it would be not difficult to imagine a scenario in which families find it impossible to take photographs while on vacation for fear of trademark dilution.</p>
<p>And while this bill and the issues with which it deals do not have a readily apparent relationship to the technologies that supply the inspiration and backdrop for <span class="booktitle">Free Culture</span>, it is precisely the Internet that motivates such legislation. Trademark owners are not concerned about people who mention their property in private, or take a photo to put in an album only to be seen by a select few (i.e. families). Such remarks and images may be critical of certain trademarks, but when they are not widely distributed they are little cause for worry. However, with the rise of free web-based services such as those listed above, what was once private has become public. Debates once held over family dinners can now be developed on web pages. Petitions to governmental officials now bear the signatures of tens of thousands rather than hundreds. Events that corporate news outlets do not deem worthy of coverage find lives in the obsessive writings of political bloggers on the left and the right. When Martin Luther posted his critique on a church door, many saw it and took notice. In the age of the Internet the potential audience for such content is increased by an order of magnitude. In short, the Internet, in Lessig’s argument, is a space for democratic debate.</p>
<p>This argument is not necessarily a new one. Moreover, it is not a utopian claim. Lessig, more than anyone, understands that the Internet is not free because it is inherently, essentially free.<cite id="note_11">For a full discussion the Internet and the nature of freedom online, see Lessig’s <span class="booktitle">Code and Other Laws of Cyberspace</span> (New York: Basic, 1999). Code is also available online, as a wiki. Lessig has asked people to rewrite Code, accounting for the changes in the technological, cultural, and legal environments since the books initial publication in 1999. See the project <a href="http://codebook.jot.com/WikiHome">here</a>. For a theoretical discussion of how the Internet institutes control, see Alexander Galloway’s <span class="booktitle">Protocol: How Control Exists after Decentralization</span> (Cambridge, MA and London: MIT P, 2004).</cite> The Internet is free to the extent that it is constructed as a free space, just as society is only as free as its legal system allows it to be. And with the rise of this democratic space has come the most severe backlash against democratic debate in recent memory in the form of such measures as the Trademark Dilution Revision Act. However, this debate is not one that is taking place between the political left and political right, but rather between those entrenched in positions of power and those who demand the right to speak out against (or simply alongside) those positions. As Lessig argues in <span class="booktitle">The Future of Ideas: The Fate of the Commons in A Connected World</span>: “This is a war about basic American values. It is about the values of balance and measure that should limit the government’s role in choosing the future of creativity” (xvi, original emphasis). The choice, he later claims, is not between Left and Right or between being pro- or anti-market. Rather, “the real struggle at stake now is between the old and the new” (6, original emphasis). If we would build a future that is not merely a continuation of our past we must maintain our ability to be creative, the “free” in “free culture.”</p>
<h2>Works Cited</h2>
<p>Lessig, Lawrence. <span class="booktitle">Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity</span>. New York: Penguin, 2004.</p>
<p>—. <span class="booktitle">The Future of Ideas: The Fate of the Commons in a Connected World</span>. New York: Random House, 2001.</p>
<p>Stallman, Richard M. <span class="booktitle">Free Software, Free Society: Selected Essays of Richard M. Stallman</span>. Ed. Joshua Gay. Boston: GNU P, 2002.</p>
</div></div></div><div class="field field-name-field-tags field-type-taxonomy-term-reference field-label-above"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/robertson">Robertson</a>, <a href="/tags/lessig">Lessig</a>, <a href="/tags/free-culture">Free Culture</a>, <a href="/tags/copyright">copyright</a>, <a href="/tags/copyleft">copyleft</a>, <a href="/tags/stallman">Stallman</a></div></div></div>Tue, 31 Jan 2012 16:25:05 +0000EBR Administrator1135 at http://www.electronicbookreview.comIntellectual Property Law, Freedom of Expression, and the Webhttp://www.electronicbookreview.com/thread/technocapitalism/proprietary
<div class="field field-name-field-author field-type-node-reference field-label-hidden clearfix">
<div class="markup">by</div>
<div class="field-items">
<div class="field-item even">Kembrew McLeod</div>
</div>
</div>
<div class="field field-name-field-publication-date field-type-datetime field-label-hidden"><div class="field-items"><div class="field-item even"><span class="date-display-single">2003-09-12</span></div></div></div><div class="field field-name-field-source-url field-type-link-field field-label-inline clearfix"><div class="field-label">Source URL:&nbsp;</div><div class="field-items"><div class="field-item even"></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Intellectual property law is a key variable that helps drive the so-called “new economy.” Without the legal and economic protection that intellectual property law provides, companies would not have had the confidence to adopt a new business model in which intangible, easily reproducible goods and services have become among the most important things that are sold. Strong intellectual property protection is extremely important for companies operating within this new economic landscape, and they do not take kindly to others who - without authorization - use companies’ trademarked, copyrighted and patented goods (in the case of celebrities, their images are protected by right of publicity law).</p>
<p>The issues surrounding both the Internet and intellectual property law are numerous and extremely complicated. In this essay, I will focus only on the use of intellectual property law by corporations to restrict freedom of expression.</p>
<p>Trademark law is increasingly being deployed to police how corporate logos are being used on the Web. This is significant because trademark law has no formally written “fair use” provision that is analogous to copyright law. Corporations and the courts don’t view the corporate trademarks that litter our cultural landscape as culturally rich signifiers that can be used to help make sense of the world. Instead, they are viewed as private property first and foremost, and any attempts to use these trademarks in ways that property owners don’t approve can result in costly lawsuits.</p>
<p>In order for people to comment on, critique, or fawn over the subject of a site, Web authors reproduce trademarked and copyrighted images. Although there are numerous websites that haven’t had legal problems, those sites that go beyond simply promoting a television show, movie or fictional character and which are critical of their subjects often raise the ire of a corporate trademark owner. Copyright law is also being used in much the same way and, despite the “fair use” provision in the law, companies have been successful in shutting down types of expression they do not approve of because the cost of litigating a copyright infringement lawsuit is extremely high. In other words, when faced with the possibility of a lawsuit, potential infringers often choose not to risk a costly legal battle and, instead, decide not to engage in an activity that would bring the wrath of a corporation with a well-financed legal department.</p>
<p>The Internet is commercially-mediated terrain. As more and more of our interactions are mediated electronically and cultural texts are routinely distributed online, we are increasingly exposed to the policing powers of intellectual property owners. That is, when we create new cultural texts (and engage in everyday interpersonal discussions), we often reference existing cultural texts to convey certain meanings. In doing so, we cannot help but use privately owned signifiers when engaging in cultural production–signifiers that are copyrighted and trademarked by very protective corporate entities who care little for protecting freedom of expression.</p>
<p>My use of the phrase “freedom of expression” has a double meaning, because I successfully trademarked the phrase. After developing an academic interest in intellectual property law, I grew increasingly concerned with the way in which copyright, trademark and patent laws were being used to gobble up things that had previously been assumed to be in the public domain. Pharmaceutical companies, for instance, have patented human genes associated with diseases and common phrases like “home style” have been trademarked by the food company Mrs. Smith’s, which threatened to sue Mrs. Bacon (the owner of a small St. Petersburg, Fla. bakery) for her unauthorized use of the phrase. <cite id="note_1">“Mrs. Smith has a lot of Crust.” <span class="booktitle">St. Petersburg Times</span>. December 16, 1994: 18.</cite></p>
<p>As a kind of socially conscious prank, I applied with the U.S. patent and trademark office to register “freedom of expression” as a trademark, and in 1998 I received a certificate that stated that I was the proud owner of the mark. It was registered only under Class 16 of the international schedule of classes of goods and services, which covers, generally, “printed matter” and the like. But even though I can’t prevent someone from using the term in <span class="lightEmphasis">all</span> situations, I can still sue for the unauthorized use of “freedom of expression” in <span class="lightEmphasis">some</span> contexts - an irony that amuses (and scares) me to no end.</p>
<p>Regardless of how one feels about the ethics of manipulating the media, I have found media pranks to be an effective, interesting, and unconventional ways of engaging in cultural criticism beyond the limited scope of academia. Employing the services of my old high school prankster friend Brendan Love, who posed as the publisher of a fictional punk rock magazine also titled <span class="booktitle">Freedom of Expression</span>, I started to lay the groundwork for my plan. To add legitimacy to this potential news story, I hired Attorney at Law Joan R. Golowich (who did not know this was a joke) to send a letter ordering Brendan to cease and desist his use of the phrase. Before I had my first meeting with Ms. Golowich, my boss at Amherst College Library, Margaret Groesbeck, declared, in the same words someone else used a few years earlier, that this lawyer would “laugh me out of her office.” Thankfully, I learned that intellectual property law is entirely humorless, and after informing Ms. Golowich of my intention to sue someone for using freedom of expression® without permission and after she examined my documents, she confidently told me that we had a case and that she would draft a letter to Mr. Love immediately.</p>
<p>I made copies of the letter and my trademark certificate and sent them, along with a press release, to local media. The point of this particular media prank was to “play it straight” and never let on to a reporter my intention to engage in social commentary – I would let the news story itself do the talking. That is, rather than someone reading a quote from me stating “I’m concerned with the way intellectual property law facilitates the appropriation of significant aspects of our culture by corporations… blah blah blah,” I wanted to orchestrate the story in a way that newspaper readers would come to that conclusion on their own. I did my best to sound serious when a woman with a wonderfully rhyming name, Mary Carey, interviewed me on behalf of the <span class="booktitle">Daily Hampshire Gazette</span>.</p>
<p>The story, which fittingly appeared in the Fourth of July weekend edition on the local section’s front page, was cleverly titled “Freedom, an Expression of Speech.” <cite id="note_2">Carey, M. “Freedom, an Expression of Speech.” <span class="booktitle">Daily Hampshire Gazette</span>. July 4-5, 1998: 9.</cite> Carey did a good job of writing a balanced, “objective” story by interviewing both Brendan and myself, but it was nonetheless slanted in the direction of highlighting the absurdity of someone being able to own freedom of expression®. The article closed with the following poker-faced quote from myself, “I didn’t go to the trouble, the expense, and the time of trademarking Freedom of Expression just to have someone else come along and think they can use it whenever they want.” <cite id="note_3">Ibid., 9. This story took some more unusual twists and turns, and for a full accounting of the tale see the preface to my book, <span class="booktitle">Owning Culture</span>.</cite> Unfortunately, the <span class="booktitle">Daily Hampshire Gazette</span> refused to give me permission to reprint the article.</p>
<h2>Distinctions Between Intellectual Property Laws</h2>
<p>Copyright, trademark, and patent law protect different types of cultural expression or information. They have emerged out of distinct histories, but people tend to use them interchangeably. For instance, in different parts of the <span class="booktitle">Daily Hampshire Gazette</span> article, the reporter referred to freedom of expression® as both a trademarked and a patented good. For her, the newspaper readers, and some readers of this book, these two terms might mean the same thing, but they are certainly not. So to alleviate any confusion, I will provide a very brief overview of patent, copyright and trademark law in the U.S., as well as the body of law that protects celebrity images - the right of publicity.</p>
<p><span class="lightEmphasis">Copyright Law</span>. Copyright applies to all types of original expression, including art, sculpture, literature, music, songs, choreography, crafts, poetry, flow charts, software, photography, movies, CD-ROMs, video games, videos and graphic designs. <cite id="note_4">Elias, S. <span class="booktitle">Patent, Copyright &amp; Trademark: A Desk Reference to Intellectual Property Law</span>. Berkeley: Nolo Press, 1996. 66.</cite> Copyright only applies to literal expression, and not the underlying concepts and ideas of that expression (that is, you cannot copyright an idea). <cite id="note_5">Ibid.</cite> The difference between an idea and the protected expression of that idea highlights the way Enlightenment and Romantic concepts of originality and authorship are deeply embedded in contemporary copyright law, a subject I will return to later.</p>
<p>There is a strong connection between the rise of capitalism, the invention of the printing press, and the commodification of literary and artistic domains, and copyright law was the first piece of legislation to arise from the collision of the above-mentioned concepts. <cite id="note_6">Bettig, R. V. <span class="booktitle">Copyrighting Culture: The Political Economy of Intellectual Property</span>. Boulder: Westview Press, 1996.</cite> In 1710, Britain passed the Statute of Anne, which was akin to modern copyright law, and in 1790 the U.S. Congress passed a similar law long before most major European countries. This is not surprising considering the fact that an early draft of the Declaration of Independence sought to protect life, liberty and “property” rather than “the pursuit of happiness,” as in the well-known phrase contained in the final draft.</p>
<p>Copyright owners are extremely powerful and have at times flexed significant lobbying muscle. For instance, until 1998 the period of copyright protection lasted for the life of the author plus 50 years unless the creator was a business in which case the period of protection lasted for 75 years. But many of the Walt Disney’s most lucrative character copyrights were due to lapse near the turn of the century, with (horror of horrors!) Mickey Mouse passing into the public domain in 2004, and Pluto, Goofy and Donald Duck following suit in 2009. <cite id="note_7">Chartrand, S. “Patents: Congress has Extended its Protection for Goofy, Gershwin, and Some Moguls of the Internet.” <span class="booktitle">New York Times</span>. October 19, 1998: C2.</cite> Disney, along with the Motion Picture Association of America (MPAA), heavily lobbied Congress to pass legislation to extend copyright coverage for an extra 20 years, which Congress did. <cite id="note_8">Robb, D. “Early Disney Cartoons Face loss of Copyright.” <span class="booktitle">Denver Rocky Mountain News</span>. January 28, 1998: 1D.</cite></p>
<p><span class="lightEmphasis">Trademark Law</span>. As a form of intellectual property law, trademark law developed from a body of common law that was concerned with protecting commercial marks from being misused and misrepresented by competing companies. <cite id="note_9">Buskirk, M. “Commodification as Censor: Copyrights and Fair Use.” <span class="booktitle">October</span>, 60 (1992), 82-109.</cite> Trademark law is also a federal statute and it grew out of nineteenth century court decisions surrounding “unfair competition” business practices. Trademark law is concerned with how businesses may “identify their products or services in the marketplace to prevent consumer confusion, and protect the means they’ve chosen to identify their products or services against use by competitors.” <cite id="note_10">Elias, S. <span class="booktitle">Patent, Copyright &amp; Trademark: A Desk Reference to Intellectual Property Law</span>. Berkeley: Nolo Press, 1996. 324.</cite></p>
<p>Among the things that can be trademarked are distinctive words, phrases, logos and graphic symbols used to identify a product or service. Examples include MacDonald’s golden arches, Prince’s gender-bending squiggle symbol, or Kraft Real Cheese. Trademark law is not simply limited to protecting symbols, logos, words or names; it also covers shapes, sounds, smells, numbers and letters. (In 1997, hip-hop star Warren G sued country star Garth Brooks for the unauthorized use of the lower case letter “g,” which he had trademarked.) <cite id="note_11">Elias, S. <span class="booktitle">Patent, Copyright &amp; Trademark: A Desk Reference to Intellectual Property Law</span>. Berkeley: Nolo Press, 1996; McLeod, K. “Warren G and Garth Brooks Battle over Trademark Letter ‘g’ ” [Online]. November 5, 1997. <span class="booktitle">SonicNet</span>. Available at: <a class="outbound" href="http://www.addict.com/MNOTW/hifi/">http://www.addict.com/MNOTW/ hifi/</a></cite></p>
<p><span class="lightEmphasis">Patent Law</span>. Patent law protects from unauthorized commercial use certain types of inventions registered through the PTO, which grants three types of patents. The first, utility patents, are granted to useful inventions that fit into at least one of the following categories: “a process, a machine, a manufacture, a composition of matter or an improvement of an existing idea that falls into one of these categories.” <cite id="note_12">Elias, S. <span class="booktitle">Patent, Copyright &amp; Trademark: A Desk Reference to Intellectual Property Law</span>. Berkeley: Nolo Press, 1996. 187.</cite> The second, design patents, “must be innovative, nonfunctional and part of a functional manufactured article”; a bottle or flashlight design that doesn’t improve functionality would qualify. <cite id="note_13">Ibid., 187.</cite> A plant patent, the third type, “may be issued for any asexually or sexually reproducible plants (such as flowers) that are both novel and nonobvious.” <cite id="note_14">Ibid., 187.</cite> This last type of patent covers living matter and is relatively recent, the product of a 1980 Supreme Court decision that ruled that an applicant could patent a genetically engineered bacterium. <cite id="note_15">King, J. &amp; Stabinsky, D. “Patents on Cells, Genes, and Organisms Undermine the Exchange of Scientific Knowledge.” <span class="booktitle">Chronicle of Higher Education</span>, 22. February 5, 1999: 7-8.</cite> This type of patent expanded, by the mid-1990s, to include human genes, cell lines, proteins, genetically engineered tissue, and organisms. <cite id="note_16">Rifkin, J. “The Biotech Century: Human life as Intellectual Property.” <span class="booktitle">Nation</span>. April 13, 1998: 11-19.</cite></p>
<p><span class="lightEmphasis">Right of Publicity Law</span>. The oddball in this list, right of publicity law, evolved from legal principles different from copyright, trademark and patent law. Nevertheless, right of publicity, which protects celebrity images from being appropriated in a commercial context without permission, functions in much the same way these other intellectual property laws do. Like trademark law, it does not have a “fair use” component written into law, thus making it easier for celebrities to regulate the contexts in which their images appear. Right of publicity law descends from right of privacy law, and it came into existence to meet a particular social and economic need that developed over the twentieth century. Raymond Williams has argued that the logic of capitalism necessarily requires previously untouched areas of cultural activity to be brought into this web of commodity relations. The transformation of right to privacy, a nonproprietary law, into right of publicity, a proprietary law, is an example. <cite id="note_17">Gaines, J. <span class="booktitle">Contested Culture: The Image, the Voice, and the Law</span>. Chapel Hill: University of North Carolina Press, 1991.</cite></p>
<p>The trademarking of important cultural texts is very significant because, unlike copyright law, it has no formally written “fair use” statute. To briefly explain, “fair use” evolved from court decisions that recognized the fact that absolute control of copyrighted works would circumscribe creativity and, perhaps more importantly for elite lawmakers, limit commerce. <cite id="note_18">Buskirk, M. “Commodification as Censor: Copyrights and Fair Use.” <span class="booktitle">October</span>, 60 (1992): 82-109.</cite> The “fair use” statute recognizes that, in certain contexts, aspects of copyrighted works can be legally reproduced, and it allows for the appropriation of copyrighted works for use in, for instance, “criticism, comment, news reporting, teaching… scholarship, or research,” according to the 1976 US copyright statute. <cite id="note_19">Ibid., 91.</cite> Fair use may apply to a variety of other situations not listed above, and in determining whether a work is fair use, the U.S. Congress outlined the following four factors:</p>
<p class="longQuotation">(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes</p>
<p class="longQuotation">(2) The nature of the copyrighted work</p>
<p class="longQuotation">(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole</p>
<p class="longQuotation">(4) The effect of the use upon the potential market for or value of the copyrighted work <cite id="note_20">Elias, S. <span class="booktitle">Patent, Copyright &amp; Trademark: A Desk Reference to Intellectual Property Law</span>. Berkeley: Nolo Press, 1996. 169.</cite></p>
<p>The “fair use” statute was written in order to, in part, protect freedom of expression, but because trademark law has no formally written “fair use” provision that acknowledges privately owned images as culturally rich signifiers, it opens citizens up to a newly emergent form of censorship. I will illustrate this with an example. As much as some televangelists may have desired it, Jesus Christ cannot be trademarked. Without any intellectual property protection for Jesus’ image, churches cannot suppress the presentation of artist Andres Serrano’s <span class="booktitle">Piss Christ</span> – the controversial photograph of a crucifix submerged in a glass of urine – in the same way that Disney can legally enjoin an offensive work of art that appropriates its trademarked characters. Just as it is impossible for Christian churches to trademark the image of Jesus Christ, it is unthinkable that the Bible could be copyrighted. However, the Church of Scientology - a religion that emerged in the age of intellectual property law - copyrighted its religious writings, and it has filed numerous copyright infringement lawsuits throughout the past few decades to maintain control over the context in which those writings are presented. <cite id="note_21">Mallia, J. “Inside the Church of Scientology.” <span class="booktitle">Boston Herald</span>. March 4, 1998: 25.</cite></p>
<h2>Intellectual Property Law and the Internet</h2>
<p>In recent years, the Internet has been a place where Scientology dissidents have organized and traded information, and many of the online critiques that have used Scientology’s copyrighted and trademarked images have prompted intellectual property lawsuits. <cite id="note_22">“Global Struggle Over Truth and Eternal Life. <span class="booktitle">South China Morning Post</span>. August 20, 1995: 4.</cite> For instance, in 1996 a judge ruled in favor of the Church of Scientology when a critic of the Church published copyrighted Scientology writings on the Internet as part of an ongoing discussion among church dissidents. Giving an example of a person who wants to engage in a critique of Christian religious beliefs needing Bible text to work from, one defendant’s lawyer unsuccessfully argued that the use of the copyrighted documents were necessary to engage with and debate the Church of Scientology’s ideas. <cite id="note_23">“Copyright Law Applies to Internet; Judge Rules Scientologists Win U. S. Lawsuit.” <span class="booktitle">Toronto Star</span>. January 21, 1996: A13.</cite></p>
<p>The Church of Scientology has won numerous copyright cases against those who have critiqued the Church, and its court battles pertaining to the Internet helped set the first precedents concerning copyright and cyberspace. <cite id="note_24">Ibid.</cite> The Internet is an increasingly significant venue where individuals can also use celebrity images to help make meanings and build communities among people with common interests. It is also a site where celebrities have intervened to shut down uses of their image they do not approve.</p>
<p>Celebrities are not the only ones who have intervened to shut down web sites; corporations that produce various cultural texts (television shows, motion pictures, etc.) have forced fan web sites to remove copyrighted and trademarked materials. The Fox network has vehemently protected its intellectual properties, and was one of the first television networks to pursue legal threats and actions against infringers in the early days of the Internet. Early on, they sent cease and desist letters to <span class="booktitle">Simpsons</span> sites and, notably, sites devoted to the <span class="booktitle">X-Files</span>. This angered many fans who felt that the success of the fledgling show (created by Chris Carter) was due in part to the early support and buzz created by the Internet. <cite id="note_25">Belsie, L. “Web War: Hollywood Tangles with Fans’ On-line Sites.” Christian Science Monitor. December 17, 1996: 1.; “Microfile.” <span class="booktitle">Guardian</span>. August 14, 1997: 11.</cite></p>
<p>Many times corporations that want to eliminate unauthorized uses of their intellectual properties want to control the context in which their copyrights and trademarks are exhibited, particularly when shown in an unfavorable context. In other instances, companies are driven by a simple desire to protect their own investments. A college student, Gil Trevizo, launched a web site devoted to another Chris Carter-created show, <span class="booktitle">Millennium</span>, before Fox itself had launched its official site, which cost $100,000 to create and which the network planned to debut on the Web the night the show premiered. The studio balked and sent Trevizo a letter from the legal department threatening a lawsuit unless all copyrighted and trademarked materials were removed from the site.</p>
<p>The student, forced to comply with Fox’s demands, stated, “They don’t understand an active medium where you have to interact with people as a community, rather than purely as customers.” <cite id="note_26">Belsie, L. “Web War: Hollywood Tangles with Fans’ On-line Sites.” <span class="booktitle">Christian Science Monitor</span>. December 17, 1996: 1.</cite> This prompted an e-mail “flame war” against the studio, with one perceptive fan, Lori Bloomer, arguing, “If you look at the official sites, they tell you exactly what they want you to know.” <cite id="note_27">Harmon, A. “Web Wars: Companies Get Tough on Rogues.” <span class="booktitle">Los Angeles Times</span>. November 12, 1996: 1A.</cite> She continued, “It is becoming clear that this is not just a matter of either copyright or trademark … but that Fox execs want complete and total control over how every facet of their company is portrayed on the Internet.” <cite id="note_28">Belsie, L. “Web War: Hollywood Tangles with Fans’ On-line Sites.” <span class="booktitle">Christian Science Monitor</span>. December 17, 1996: 1.</cite> With the numerous site closings, some site operators satirized Fox’s actions by playing on instantly recognizable lines from the <span class="booktitle">X-Files</span>: “They’re shutting us down, Scully” and “Free speech is out there.” <cite id="note_29">Harmon, A. “Web Wars: Companies Get Tough on Rogues.” <span class="booktitle">Los Angeles Times</span>. November 12, 1996: 1A.</cite></p>
<p>Jill Alofs - the founder of Total Clearance, a firm that specializes in multimedia and Web site clearances - stated:</p>
<p class="longQuotation">An individual fan may create a site and not think that they are doing anything bad, but that is not necessarily the case in the eyes of all entertainment companies…. The entertainment companies want to have a sense of control over their properties, and often these Web sites do not fit in with the marketing and imaging that companies want to present. <cite id="note_30">Atwood, B. “Oasis in C’right Dispute with Fans’ Web Sites.” <span class="booktitle">Billboard</span>. May 24, 1997: 3.</cite></p>
<p>Of course, fan sites are not the only worry of corporations; even more troublesome is the targeting by IP-owning corporations of sites that criticize them. Increasingly, companies are using trademark law to silence criticism because of the law’s lack of a formally defined “fair use” provision. For instance, a former employee of Kmart, Jim Yagmin, began a “Kmart sucks” site in 1995, where the teenager painted an unflattering portrait of his former employer. <cite id="note_31">Neuborne, E. “Vigilantes Stir Firms’ Ire with Cyber-Antics.” <span class="booktitle">USA Today</span>. February 28, 1996: 1A.</cite> Yagmin then received a threatening letter from Kmart’s lawyers ordering him to: “(1) Remove the icon `K’ and any appearances of `K’ with the likeness of that used by Kmart, including the red Kmart and the blue and gray Kmart sucks. (2) Remove the name Kmart from the `title’ of any page. (3) At the bottom of `The Eternal Fear’ page remove the lines `Go steal something from Kmart today, and tell em Punk God sent ya’.” <cite id="note_32">Harmon, A. “Web Wars: Companies Get Tough on Rogues.” <span class="booktitle">Los Angeles Times</span>. November 12, 1996: 1A.</cite></p>
<p>Kmart spokeswoman Mary Lorencz stated: “We monitor the use of our trademark everywhere, including cyberspace…. We’ve spent a great deal of time and money creating a positive image for it, and it’s obviously important to us.” <cite id="note_33">Ibid.</cite> Despite the fact that Yagmin replaced the Ks with Xs, the modification was not enough for his nervous Internet service provider, which told him the site would have to be removed completely.</p>
<p>In another example of the way in which intellectual property law is used ideologically, Zack Exley, a University of Massachusetts-Amherst graduate student, registered the unclaimed domain names “gwbush.com,” “gwbush.org,” and “gbush.org.” In 1999, he set up a satirical web site, a sort of “parallel universe” Bush campaign site. The same year the Bush campaign sent Exley a letter threatening to sue him if he continued to use their copyrighted and trademarked images on his site. He promptly removed the images, though the content of the site still remained critical of the Bush campaign. Exley’s actions pushed the campaign to buy 260 other domain names, including the hilariously paranoid registering of such addresses as “bushsucks.com,” “bushsux.com” and “bushblows.com.” <cite id="note_34">Anderson, M. “Bush-Whacker, Meet Zack Exley: Computer Consultant, Online Satirist, Pain in the Ass.” <span class="booktitle">Valley Advocate</span>. July 1, 1999: 12, 19.</cite> (If you type in the domain names bushblows.com, bushsucks.com or bushbites.com, it sends you directly to the official Bush-Cheney web site. In fact, many derogatory adjectival combinations will send you to the campaign’s website - try it, it’s a great party trick.)</p>
<p>At the time, Bush could do nothing about Exley’s registering of these domain names, but since then it has become easier for famous people to secure control of a domain name that mirrors their own name. In 2000, pop singer Madonna won a case in front of the United Nations-affiliated World Intellectual Property Organization, in which she sued a porn site operator to transfer the domain name to the singer. WIPO’s fast-track arbitration system has allowed corporations, music groups and celebrities to gain control of domain names that they argue were registered in bad faith. WIPO has ruled in favor of, for instance, Julia Roberts and Jethro Tull (which, of course, is not a person, but a band name). <cite id="note_35">“Madonna Wins Domain Name Battle.” October 16, 2000. <span class="booktitle">CNN.com</span>. [Online] Available at: <a class="outbound" href="http://www.cnn.com/2000/TECH/computing/10/16/madonna.cybersquatter.reut/">http://www.cnn.com/2000/TECH/computing/10/16/madonna.cybersquatter.reut/</a></cite> Among other eyebrow-raising decisions, the panel also ordered the domain name Corinthians.com, a site devoted to the Bible, to be transferred to a Brazilian soccer team of the same name. <cite id="note_36">“Cybersquatters: Invading Big Names’ Domains.” September 25, 2000. <span class="booktitle">CNN.com</span>. [Online] Available at: <a class="outbound" href="http://www.cnn.com/2000/TECH/computing/09/06/internet.domains/index.html">http://www.cnn.com/2000/TECH/computing/09/06/internet.domains/index/html.</a></cite></p>
<p>By 1999, trademark law had expanded to protect this previously untouched aspect of the Internet. <cite id="note_37">Friedman, M. “Lawyers 1, Domain Pirates 0.” <span class="journaltitle">Canadian Business</span>. May 28, 1999: 74</cite> Numerous courts have found in favor of trademark-owning companies in “cyber-squatting cases.” “Cyber-squatters” are those who have registered domain names that echo the trademarks owned by a company, such as the name “DonaldFuck.com.” Sally M. Abel, International Trademark Association board of directors member, stated: “Courts as a whole are bending over backward to respect trademark rights…. [The courts] appear to have accepted that this is a commercial medium.” <cite id="note_38">Richtel, M. “You Can’t Always Judge a Domain by its Name.” <span class="booktitle">New York Times</span>. May 28, 1998: G6.</cite> That is, because the Internet is a site of commercial activity, the conception of trademarks purely as property should win out over the idea that they are important texts that can be used to engage in discourse about contemporary life.</p>
<p>At the end of 1999, trademark-owning corporations won a major lobbying victory when the U.S. Congress passed the Anti-Cyber Squatting Consumer Protection Act, which ensures penalties of up to $100,000 for people who use trademarked names in their domain names (such as “CokeSucks.com,” etc.). <cite id="note_39">“Cyber-Piracy Bill Passes.” <span class="booktitle">San Diego Union-Tribune</span>. December 11, 1999. Auto Section: 8.</cite> In the wake of the passage of this bill, companies have been particularly aggressive in pursuing legal action against those who incorporate their trademarks into domain names.</p>
<p>In 2000, a judge from the Southern District of New York ruled in favor of Mattel, Inc. in a case involving a porn site that had registered the name “Barbiesplaypen.com.” The judge initiated a cease-and-desist order, prompting the site to shut down. At the time of the ruling, a Mattel spokesperson stated that the company would defend its brand names even when there have been no customer complaints, and in this case the company stated that it wouldn’t risk having people think that Mattel was involved in a pornographic site. The Houston-based lawyer Robert Lytle, a legal expert on cyber-squatting, stated, “The case strengthens the ability of the mark owner to protect its mark from tarnishment from uses on the Web.” <cite id="note_40">Disabatino, J. “Mattel’s Barbie Wins Case Against Cybersquatters.” July 24, 2000: <span class="booktitle">CNN.com</span>. [Online] Available at: <a class="outbound" href="http://www.cnn.com/2000/TECH/computing/07/24/barbie.vs.squatters.idg/index.html">http://www.cnn.com/2000/TECH/computing/07/27/barbie.vs.squatters.idg/index.html.</a></cite> Similarly, Ford Motors filed a lawsuit against 95 companies and individuals who violated this law. The 1999 Anti-Cyber Squatting Act gives trademark owners the sweeping legal power to transfer the domain names that contain their trademarked name, in virtually any context. <cite id="note_41">Truby, M. “Automakers Fight Cyberpirates.” <span class="booktitle">Detroit News</span>. May 30, 2000: 1. For instance, a friend and I have begun a somewhat humorous competitive performance art piece that involves jacking up our Honda sedans, to transform each boring car into (to use the slang term) a “hooptie.” We immediately decided to register the domain name “hondahooptie.com” to document our art project, but then thought better of the idea when I realized we could very well face a lawsuit or, at the very least, lose the domain name. This is one anecdotal example (among many) of how the law can intervene to shut down cultural expression even before it can be shared with others on a medium like the Internet.</cite></p>
<h2>The Privatization of Culture</h2>
<p>These recent examples of the privatization of culture are merely an extension of a trend that has been taking place during the last thirty years, and which has been accelerating. Herbert Schiller asserts that, by the late-twentieth century, most symbolic production and human activity had become immersed in commodity relations. <cite id="note_42">Schiller, H. <span class="booktitle">The Mind Managers</span>. Boston: Beacon Press, 1973; Schiller, H. <span class="booktitle">Information and the Crisis Economy</span>. Norwood, NJ: Ablex Corporation, 1984; Schiller, H. I.. <span class="booktitle">Culture Inc.: The Corporate Takeover of Public Expression</span>. New York: Oxford University Press, 1989.</cite> “In the 1990s,” Schiller writes, “the production, processing, and dissemination of information have become remarkably concentrated operations, mostly privately administered.” <cite id="note_43">Schiller, H. I. <span class="booktitle">Information Inequity: The Deepening Social Crisis in America</span>. New York: Routledge, 1996. 124-5.</cite> In addition, there has been a growth of corporate power primarily resulting from government deregulation, privatization of once public functions, and the commercialization of activities that previously were not a part of the economic sphere. <cite id="note_44">Ibid.</cite> Schiller argues that a “total corporate information-cultural environment” is spreading throughout the globe, including not just movies and television shows, but banking and other economic and financial networks. <cite id="note_45">Ibid.</cite> To this extent, by the mid-1990s, intellectual property accounted for over 20% of world trade, roughly $240 billion U.S. dollars. <cite id="note_46">Harris, L. E. <span class="booktitle">Digital Property: Currency of the 21st century</span>. New York: McGraw-Hill, 1998.</cite></p>
<p>R.V. Bettig wrote <span class="booktitle">Copyrighting Culture</span> as an attempt to extend the line of thinking that runs through the political economy of communication literature to the area of intellectual property. Although Bettig discusses the ideological functions of media ownership to a certain extent, <span class="booktitle">Copyrighting Culture</span> is first and foremost an examination of the appropriation and commodification of information and culture. Intellectual property is significant to his analysis of media ownership, especially because companies that control the copyrights of cultural “software” (back catalogs of music, films, television shows, etc. – for instance, Disney) are considered by many investment firms to be extremely lucrative, perhaps the most profitable companies in the communications market. Furthermore, ownership of intellectual property significantly enhances a company’s ability to maneuver in the corporate landscape of culture industries. For instance, Hollywood was able to muscle its way into the cable television industry because of its massive holdings of cultural software. <cite id="note_47">Bettig, R V. <span class="booktitle">Copyrighting Culture: The Political Economy of Intellectual Property</span>. Boulder: Westview Press, 1996.</cite></p>
<p>Schiller, for his part, focuses on the intensifying push toward the privatization of as many forms of social activity as possible, which were brought under corporate control during the latter part of the twentieth century. <cite id="note_48">Schiller, H. I. <span class="booktitle">Culture Inc.: The Corporate Takeover of Public Expression</span>. New York: Oxford University Press, 1989.</cite> Sites where culture is produced (public schools) or made available (public libraries, museums, theaters, etc.) have been brought under the direct influence of private corporations that, in turn, influence the form culture takes.</p>
<p class="longQuotation">[B]y the close of the twentieth century, in highly developed market economies at least, most symbolic production and human creativity have been captured by and subjected to market relations. Private ownership of the cultural means of production and the sale of the outputs for profit have been the customary characteristics. The exceptions - publicly supported libraries, museums, music - are few, and they are rapidly disappearing. The last fifty years have seen an acceleration in the decline of nonmarket-controlled creative work and symbolic output. At the same time, there has been a huge growth in commercial production. <cite id="note_49">Ibid, p. 32.</cite></p>
<p>New technologies have facilitated both the growth of culture industries and the explosion of information-producing sectors. Both of these areas have been marked by the consolidation of ownership through mergers and acquisitions.</p>
<p>An example of this is the 1989 merger of Time and Warner Brothers to create Time-Warner, the subsequent merger of Time-Warner with Turner Broadcasting in 1996, and America Online’s acquisition of the Time-Warner empire. <cite id="note_50">Bagdikian, B. <span class="booktitle">The Media Monopoly</span>. Boston: Beacon Press, 1992; Saporito, B. &amp; Baumohl, B., et al. “Time for Turner.” <span class="booktitle">Time</span>. October 21, 1996: 72.</cite> As the result of this consolidation of media corporations, the dominance of a few firms works to ensure that a more limited range of expression is communicated. These factors, Schiller maintains, contribute to the homogenization of culture, shaped to meet the interests of the corporate parents that own the sites where culture is produced and the venues where cultural texts are distributed. <cite id="note_51">Schiller, H. I. <span class="booktitle">Culture Inc.: The Corporate Takeover of Public Expression</span>. New York: Oxford University Press, 1989.</cite></p>
<p>Public information has been extensively privatized in the postwar period. This is characterized by the privatization of governmental information that once was made available largely for free to the public, the close relationship between universities and big business (especially in the sciences), and the commercialization of information in the library field. For instance, before World War II, there were no large companies organizing, managing and distributing information, and information-gathering centered around universities, government agencies, and public libraries. Government materials were not considered lucrative and therefore were not copyrighted. But during the 1950s and 1960s computers facilitated the emergence of information industries, and recent decades have seen the widespread privatization of national and governmental information contained in databases managed by private companies. <cite id="note_52">Ibid.</cite></p>
<p>With the government increasingly contracting out information to private firms, the primary channels that citizens used to gain access to this information have been restricted in many ways. For instance, while Supreme Court, Federal Court and lower court records are still available for free, companies such as Westlaw control the intellectual property rights to such information as it exists in a more accessible form, and charge heavily for access to it. Records of scientific data and medical studies that had previously resided in the public domain are very often held by private companies that have a financial stake in restricting the flow of that information. Even if that information is readily available, there is no guarantee it will be organized in a way that benefits the welfare of the public. <cite id="note_53">Schiller, H. I. <span class="booktitle">Information Inequity: The Deepening Social Crisis in America</span>. New York: Routledge, 1996.</cite></p>
<p>Corporations have been extremely resourceful in securing new areas of culture to inhabit and own, and the National Information Infrastructure (NII, or as then-Vice President Al Gore called it, the “Information Superhighway”) is a good example. <cite id="note_54">Bettig, R. V. <span class="booktitle">Copyrighting Culture: The Political Economy of Intellectual Property</span>. Boulder: Westview Press, 1996.</cite> Private corporations led the charge to build the NII, and have – with the Reagan, Bush and Clinton administrations’ encouragement – invested billions of dollars in telecommunications in the 1980s and 1990s. <cite id="note_55">Schiller, H. I. <span class="booktitle">Information Inequity: The Deepening Social Crisis in America</span>. New York: Routledge, 1994.</cite> Those who put up the capital for this new “highway” will get to decide where it’s built, who will be admitted, and what information can flow through it.</p>
<p>Adding to the unabated privatization of public-owned information resources was the selling off of sections of the radio spectrum to facilitate the increased activity of communication industries. When those sections of the radio spectrum were in government hands, at least there was the <span class="lightEmphasis">possibility</span> that they might be used in the public interest. But now that these sections are in the hands of private companies (AT&amp;T and Sprint secured significant portions for themselves), there are no such guarantees. Ultimately, a privately owned information system will contain the key feature of the private industries that came before it: inequality in the distribution of resources. <cite id="note_56">Ibid.</cite></p>
<p>Unfortunately, intellectual property law, particularly trademark law, only conceives of these culturally loaded signifiers as <span class="lightEmphasis">private property</span> and the courts characterize the use of such trademarks as trespassing. At the same time that companies have been able to invoke trademark law to gain control of existing, registered domain names, the number of remaining domain names are being gobbled up, not so much by “cyber-squatters” but by the corporations that can purchase thousands of domain names at a rate that can’t even come close to being matched by private citizens. This, combined with the fact that corporations actively use intellectual property law to suppress expressions of dissent, points to a future of higher fences between the information haves and have-nots. Constraints are placed upon the use of these privately-owned images by intellectual property laws, which essentially function as the traffic laws that are used to police the exchange of cultural expression on the privatized information superhighways of modern communicative practice.</p>
</div></div></div><div class="field field-name-field-tags field-type-taxonomy-term-reference field-label-above"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/intellectual-property-law">intellectual property law</a>, <a href="/tags/fair-use">fair use</a>, <a href="/tags/copyright">copyright</a>, <a href="/tags/trademark">trademark</a>, <a href="/tags/patent">patent</a>, <a href="/tags/raymond-williams">raymond williams</a>, <a href="/tags/jesus-christ">jesus christ</a>, <a href="/tags/internet">internet</a>, <a href="/tags/x-files">x-files</a>, <a href="/tags/cybersquatters">cybersquatters</a>, <a href="/tags/new-economy">new economy</a>, <a href="/tags/cybersquatting">cybersquatting</a>, <a href="/tags/time-warner-0">time-warner</a>, <a href="/tags/owning-culture">owning culture</a>, <a href="/tags/genetics">genetics</a>, <a href="/tags/dna">dna</a>, <a href="/tags/genome">genome</a>, <a href="/tags/fan-sites">fan sites</a>, <a href="/tags/culture-inc">culture inc.</a>, <a href="/tags/crisis-economy">crisis economy</a>, <a href="/tags"></a></div></div></div>Tue, 31 Jan 2012 16:25:05 +0000EBR Administrator884 at http://www.electronicbookreview.comCyberlaw and Its Discontentshttp://www.electronicbookreview.com/thread/endconstruction/delimiting
<div class="field field-name-field-author field-type-node-reference field-label-hidden clearfix">
<div class="markup">by</div>
<div class="field-items">
<div class="field-item even">Geniwate</div>
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<div class="field field-name-field-publication-date field-type-datetime field-label-hidden"><div class="field-items"><div class="field-item even"><span class="date-display-single">2002-05-18</span></div></div></div><div class="field field-name-field-source-url field-type-link-field field-label-inline clearfix"><div class="field-label">Source URL:&nbsp;</div><div class="field-items"><div class="field-item even"></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>In <span class="booktitle">Beyond Our Control</span>, Stuart Biegel, a member of the faculty at the Graduate School of Education and Information Studies and the School of Law at the University of California, Los Angeles, “…strives to discuss enough representative examples so that a comprehensive overview of current regulation issues [in cyberspace] emerges” (xiv). In order to carry out his project Biegel must plot a course through a maze of competing interests, summarized in his conclusion:</p>
<p class="longQuotation">Cyberspace regulation continues to mean different things to different people. For many stakeholders, particularly in the libertarian atmosphere of the online world, the mere mention of the word regulation is enough to generate extremely negative reaction. Dystopian predictions of pervasive monitoring and dictatorial control over every aspect of our cyber-lives are inevitably set forth in this context, and government is typically portrayed as the ultimate enemy.</p>
<p class="longQuotation">For others, cyberspace regulation generates images of a return to a simpler and more circumscribed lifestyle, when human action seemed much more predictable and when people could more easily rely on certain time-tested principles to guide their daily affairs. Those holding such a view do not feel threatened by government action in cyberspace, but rather by lawbreakers and anarchists who might use this new communications medium to further their own nefarious ends. On some level, particularly for certain problem areas, the Internet itself is seen as the enemy here. Regulation is viewed as a panacea, and the government is perceived as not doing enough. (353-4)</p>
<p>As a consequence of these competing viewpoints, Biegel acknowledges the moral ambiguity of areas of cyberlaw (233). In chapter 1, he likens the growth of the Internet to the “civilising” of the American West, as it has been portrayed by Hollywood. Biegel says about both:</p>
<p class="longQuotation">On some level, at the heart of each story, it is unclear who really is in charge and what the rules are. (17)</p>
<p>These comments suggest that so many competing interests will impede a happy solution. Biegel goes on to discuss the differences between cyberspace and the material world, and whether regulation is the answer. Beyond the first part of the book, however, Biegel’s legalistic predispositions take over.</p>
<p>Biegel establishes a taxonomy of legal and ethical problems, which becomes the structure for his analysis of cyberlaw issues. From the most to the least harmful they are:</p>
<p class="longQuotation">1. Dangerous conduct - physical or national security is at stake (55); for example email threats and websites that incite violence (56), child pornography (57), unlicensed online heath care (58);</p>
<p class="longQuotation">2. Fraudulent conduct - economic crimes and misbehavior (65);</p>
<p class="longQuotation">3. Unlawful anarchic activity - which is “most controversial since there is frequently so little agreement regarding the nature and the extent of the problems”; for example - digital copying, pornography, online defamation, which “exemplifies the anarchic image of the online world” (73); and</p>
<p class="longQuotation">4. inappropriate conduct - harassment, hate-related activity, overly aggressive business promotion and other offensive acts (85).</p>
<p>Biegel concludes that the way to “improve” the current range of regulations, which may either be not strong enough, not malleable enough to suit technological change, or unrealistic and outdated (304), is to introduce a variety of three types of regulation (359). They are:</p>
<p class="longQuotation">1. traditional nation- and state-based regulation;</p>
<p class="longQuotation">2. international treaties; and</p>
<p class="longQuotation">3. code based and architectural regulation.</p>
<p>However Biegel also suggests that some problem types fall outside the regulatory frameworks, for example in regard to online hate. Biegel suggests that community-level approaches - for example private rule making at ISP level, education, policies to promote diversity - might be more appropriate here (349).</p>
<p>Although <span class="booktitle">Beyond Our Control</span> covers many areas, I am going to focus on copyright. Copyright law attempts to balance the interests of consumers to access texts (understood in the broadest sense), and the producers of the texts to make income. Biegel doesn’t specifically address copyright issues for digital artists and theorists. I’m now going to quote what several digital artists feel about digital copyright:</p>
<p class="longQuotation">I think we’re dealing with an outdated paradigm of copyright that was not made for the artist, it was made for publishing houses. I wish that more artists understood the reality that copyright privileges capital, and not the individual.<br />
Patrick Lichty 12/04/02</p>
<p class="longQuotation">…net art space, in its immateriality and evanescence, resembles a kind of condition of poetry. I agree that we should be paid: but by whom and at what cost? the political conditions that prevail in my country support a range of technological innovation and less regard for content. It is a kind of amnesia, a forgetting of content, that contributes to a malaise just under the surface in the states.<br />
Christina McPhee 18/04/02</p>
<p class="longQuotation">the issues of copyright that i *am* very concerned about are centered around the necessity to have copyright at all. some folks may be aware of a bill in the US congress that requires all media devices, hard or soft, to have a digital copy protection embedded in them. this law will force me to stamp all my work with some federal approval code, whether i want to or not. it will cost me money to get this stamp. somehow this is for my own good, this will somehow “protect” my rights of copy? no thanks, rip me off please.<br />
John Klima 8/04/02</p>
<p>As we can see, the reaction of artists to copyright law ranges from a position that copyright should be made to work better in their favour, to a position that copyright is inappropriate for the digital medium and will only ever work in favor of corporate players.</p>
<p>Biegel favors a pragmatic approach that includes rules that all netizens can understand, involves his three modes of regulation, and makes some private personal activity legal. Some of Biegel’s possible solutions, in particular architectural ones, should be of concern to artists. In regard to copyright:</p>
<p class="longQuotation">reasonable code-based adjustments can play an increasingly important role in bringing a semblance of order to this territory. (314)</p>
<p>Examples of code based regulatory options are trusted systems and digital watermarking. However, such architectural regulation may not just limit what we are allowed to do, but even what we dream of doing. As US copyright lawyer Lawrence Lessig comments:</p>
<p class="longQuotation">There is nothing to guarantee that the regime of values constituted by code will be a liberal regime; and little reason to expect that an invisible hand of code writers will push it in that direction. Indeed, to the extent that code writers respond to the wishes of commerce, a power to control may well be the tilt that this code begins to take. (546)</p>
<p>Furthermore:</p>
<p class="longQuotation">The code need not be balanced in the way that copyright law is…. Trusted systems, therefore, are forms of privatized law. They are architectures of control that displace the architectures of control effected by public law. (528)</p>
<p>Lessig believes that “the law needs to protect intangible property only in order to create the incentive to produce” (“The Law of the Horse” 525). This principle might translate into a lower level of regulation and sanction than ones that Biegel considers. Potentially, Biegel’s preparedness to incorporate code-based regulation means that a small level of private personal copying, which he also supports, will become impossible.</p>
<p>Biegel’s potentially anti-libertarian, pro-national, and pro-commerce position on copyright is reflected in the other areas he discusses in <span class="booktitle">Beyond Our Control</span>.</p>
<p>These other aspects of Biegel’s approach concern me. Although Biegel is at pains to discuss the extent to which on- and offline legal situations differ, he nevertheless is prepared to accept the offline world as some sort of ideal, and therefore attempts to “slot in” the online. In intellectual property law, for example, offline practice hardly seems that ideal, given that traditional people are being dispossessed of the economic benefits of their traditional medicine by Western multinationals, and international patenting regulation means sub-Suharan Africans suffer and die for lack of access to HIV/AIDS medication.</p>
<p>Organizations that seem to assist the First World and multinational corporations are treated reasonably well in <span class="booktitle">Beyond Our Control</span>. The WTO is represented positively, and relatively scant attention is paid to arguments that such organizations further dispossess poorer people and nations.</p>
<p>Copyright law protects nations, corporations, and individuals that are already wealthy. Were international copyright treaties to be enforced, a cumulative and endless copyright trade deficit would be accrued by less wealthy and smaller nations to larger nations (in particular to the United States).</p>
<p>Biegel does not really explore the ways in which treating US law and ethics as the benchmark in cyberspace may result in increased international inequities. At one point, he seems to suggest that US power might be right, or at least unavoidable (352).</p>
<p>A particularly thorny issue in the international arena is the control of hate-promulgating websites: in the US, the First Amendment makes legal restrictions on these websites particularly difficult to enforce. In other first world nations, curtailing freedom of speech to mitigate the worst excesses of racist behavior is considered appropriate and legally enforceable (Biegel 344-345). International treaties will be difficult to enforce where different mores hold sway.</p>
<p>Biegal’s legal training perhaps blinds him to a range of options that might exist beyond law enforcement. Many of these options hark back to the idea of an implicit social contract in cyberspace outlined in chapter 4 (page 101), but which is sidelined for much of the book (until chapter 12, mentioned above).</p>
<p>Meanwhile, the history of the Internet, which was established in part as a space for free exchange of information amongst scientific and academic communities, seems to have been more or less forgone. As Sadie Plant observes:</p>
<p class="longQuotation">There is always a point at which technologies geared towards regulation, containment, command, and control, can turn out to be feeding into the collapse of everything they once supported. (143; see also Lessig’s conclusion in <span class="booktitle">Code</span>)</p>
<p>Biegel believes that regulation is inevitable (page 52). For libertarians he offers a dystopian future in which individuals have lost the freedoms of the Internet to create and distribute any content they wish in favor of corporate control. Biegel’s solution, which is to build a consensus among stakeholders as to what is/isn’t a problem and then craft potential solutions (page 95) seems, by the end of <span class="booktitle">Beyond Our Control</span>, to have been swamped by the range of regulations he recommends.</p>
<h2>Conclusion</h2>
<p>As a basic introduction to what is a rather dry field, <span class="booktitle">Beyond Our Control</span> is a useful and thorough coverage of recent events and cases. For example, the story of the denial of service attacks in chapter 9 is excellent reading for the general reader. Perhaps this thoroughness is a greater strength than Biegel’s rather unimaginative legalistic solutions.</p>
<p>As the author says in the introduction, this book is “about control of the online world” (xiii). As such, all online users, even those who don’t think the Internet should be controlled, have a stake in these issues. Artists also may have some ability to take control if they organize cooperatively:</p>
<p class="longQuotation">re copyrite - artists do have power and choice here. yesterday i got a request from a show asking me to send my online work to them on rom..(they have no money, they are poor instution, their internet connections are bad..etc etc) once upon a time i would have done it because i wanted my work to be as availabe as possible in every country in the world.., but im just not prepared to now, i wont provide content to an organistation where everyone else gets paid without a licence fee or an exhibition fee or nice publication etc… this is the only way i can think of to alter how curators and instutions work - by keep stating what is not acceptable, that artists dont work for free.<br />
Melinda Rackham 18/04/02</p>
<p class="longQuotation">We really need to think a lot more about getting together than balkanizing, friends. It might boil down to solidarity.<br />
Patrick Lichty 12/04/02</p>
<p>Decisions about the legal status of online activity can and will have ramifications for what we can do there, and what the digital environment will “look like” in the future. We should all educate ourselves about the issues Biegel is raising, and although some of his solutions trouble me, I recommend this book as a solid introductory text.</p>
<h2>works cited</h2>
<p>Klima, John. “Re:copyright.” posted to the empyre list, 8/04/02.</p>
<p>Lessig, Lawrence. “The Law of the Horse: What Cyberlaw Might Teach.” <span class="booktitle">Harvard Law Review</span>, vol 113 (1999): 501-546.</p>
<p>Lessig, Lawrence. <span class="booktitle">Code and Other Laws of Cyberspace</span>. USA: Basic Books, 1999.</p>
<p>Lichty, Patrick. “Copyright?” posted to the empyre list, 12/04/02.</p>
<p>McPhee, Christina. “Re: Intellectual property and the space of net art.” posted to the empyre list, 18/04/02. Christina’s website is <a href="http://www.naxsmash.net">www.naxsmash.net</a>.</p>
<p>Plant, Sadie. <span class="booktitle">Zeros + Ones</span>. London: Fourth Estate, 1998.</p>
<p>Rackham, Melinda. “Re: Forward from ippolito re gift economy vs art market #1.” posted to the empyre list, 17/04/02.</p>
</div></div></div><div class="field field-name-field-tags field-type-taxonomy-term-reference field-label-above"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/geniwate">geniwate</a>, <a href="/tags/lawrence-lessig">lawrence lessig</a>, <a href="/tags/copyright">copyright</a>, <a href="/tags/law">law</a>, <a href="/tags/stuart-biegel">stuart biegel</a>, <a href="/tags/beyond-our-control">beyond our control</a>, <a href="/tags"></a></div></div></div>Tue, 31 Jan 2012 16:25:05 +0000EBR Administrator756 at http://www.electronicbookreview.comA Somewhat Legal Look at the Dawn and Dusk of the Napster Controversyhttp://www.electronicbookreview.com/thread/musicsoundnoise/legalistic
<div class="field field-name-field-author field-type-node-reference field-label-hidden clearfix">
<div class="markup">by</div>
<div class="field-items">
<div class="field-item even">Paul C. Rapp</div>
</div>
</div>
<div class="field field-name-field-publication-date field-type-datetime field-label-hidden"><div class="field-items"><div class="field-item even"><span class="date-display-single">2001-09-01</span></div></div></div><div class="field field-name-field-source-url field-type-link-field field-label-inline clearfix"><div class="field-label">Source URL:&nbsp;</div><div class="field-items"><div class="field-item even"></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="emphasis">What follows is a transcript of a talk I gave on April 4, 2000 at a symposium held by the Science and Technology Law Center at Albany Law School. The symposium was called “Internet Crimes and Civil Violations”; I was asked to talk about music and the Internet in that context. I had been excitedly following the growth of the Internet, and particularly the implications for music and art. The invitation to speak gave me an opportunity to try to put a bunch of disparate ideas together. I’m pretty sure I failed in doing that (and I sure didn’t talk much about “crimes and civil violations”!), but I think the transcript captures some of the excitement that was in the air at the time. MP3s were reaching a critical mass of popularity and Napster was just hitting most folks’ radar screens - I got the impression that most of the people at the Symposium were hearing about Napster for the first time. Gnutella was something like a week old. Everything was up in the air, and the landscape was changing daily. It was a great time, and it didn’t last.</span></p>
<p><span class="emphasis">The transcript was first published in the Albany Law School Science and Technology Law Center’s <a class="outbound" href="http://www.albanylawjournal.org/millennium">Albany Law Journal</a> in February of 2001. For that publication, I wrote a brief introduction, summarizing the changes that had occurred in the ten months since I gave the talk. That introduction precedes the transcript below. For EBR, I’ve also added a postscript, a eulogy really, which follows the transcript.</span></p>
<p>introduction</p>
<p>It is now almost a year since I gave this presentation, and since then there’s been a lot of water over the dam. In early April 2000, Napster was familiar to music-crazed college students and Internet geeks, and few others. Within months, however, Napster was a household word, Shawn Fanning was on the cover of Time Magazine, and it seemed like everybody had an opinion whether Napster was a godsend or the end of civilization.</p>
<p>My goal in this lecture was to give a general overview of the legal and societal issues surrounding music and the Internet. A more narrowly-focused presentation of the precise legal issues involved would not only have been boring to present (and beyond boring to listen to) but would have missed what I believed was the real story: the struggle for access to information, music or otherwise, information that is increasingly and without precedent being hoarded and held for ransom by corporate interests. At the time I gave the lecture, I was truly uncertain of my position on these issues, although my anti-industry tendencies were entrenched and admitted. In the weeks following the lecture my position evolved quickly to full-strength support for Napster, after further reading, reflection, analysis of the frenzied rants on all sides of the issue and from fooling around with Napster, downloading music both long forgotten and newly discovered.</p>
<p>In editing the transcript of my talk, I tried to preserve the perspective of the first week of April 2000, and not inform the piece with everything that’s happened since. While it certainly makes the presentation dated in many ways, to do otherwise would corrupt what I did by allowing me to Monday-morning-quarterback my own views. Given the rapidity with which things are happening, moreover, I would have had a difficult time deciding when to finish, since it always looks like something groundbreaking is right around the corner.</p>
<p>As I write this, the Ninth Circuit has just issued its ruling on the emergency stay of the District Court’s injunction, and we await District Court Judge Patel’s reformulated injunction order, perhaps some fancy appellate footwork by Napster’s now-superstar legal counsel, and some desperate attempts by Napster to settle the matter. When all is said and done, it is very likely that Napster is going down for the count, considering the antagonism with which Judge Patel regards Napster, the general endorsement of her findings by the Ninth Circuit, and the grim prospects for a further appeal. Napster is, at the moment, twisting in the wind.</p>
<p>A troubling aspect of the Ninth Circuit’s decision is the Court’s almost-casual and unexamined conclusion that people who use Napster are guilty of copyright infringement. So we’re all criminals. That’s real nice.</p>
<p>One legal commentator has likened the situation to a power blackout. When the lights go out, he said, people go out and loot. Now that the lights are back on, via the Ninth Circuit’s decision, the looting will stop.</p>
<p>What a ludicrous and inane analogy! What sycophantic nonsense! I do not sense a grateful nation exhaling and welcoming a return to lawfulness. I only sense a smug industry quietly thanking its lawyers for having helped it dodge a big bullet again, and a distinct sense of loss by those who do not think that discovering and listening to music is a crime.</p>
<p>Napster’s demise, if it comes, when it comes, will be too bad for everybody. Napster has proven to be a wonderful resource, a thing of value and merit. And I don’t think there is anybody at the record companies that have missed any meals as a result of this trading of music among individuals. And nobody has stopped writing songs.</p>
<p>Albany, New York<br />
February 26, 2001</p>
<h2>problems with music, copyright law, and the internet</h2>
<p>Although my talk is supposed to be about “music piracy on the Internet,” I’m not sure that there really is such a thing. And if there is such a thing, I think it’s of a limited nature. In other words, what I think I’m supposed to talk about, and what I am going to talk about, may not be piracy at all.</p>
<p>The word “pirate” brings to mind a black-bearded “Arrrr Matey” guy, somebody pulled out of a Patrick O’Brien novel, sailing the high seas, raping, looting, pillaging. In a music industry context, “music piracy” has usually referred to back-alley operators, who duplicate compact disks and cassettes in clandestine settings and then sell them on street corners, at truck stops, in bodegas. Music piracy has always been synonymous with music counterfeiting.</p>
<p>What’s been happening most notoriously and most recently on the Internet involves the trading and downloading of digital music files, largely for free and in a non-commercial environment. This is the stuff I am going to talk about. This is a different animal from counterfeiting; it may not even be copyright infringement.</p>
<p>Non-commercial digital downloading is all the rage on college campuses; the disputes we’re starting to hear about could be viewed, and have been described, as primarily a spat between college students and record companies. It’s more than that. College kids just happen to be the first ones to jump on the trend, and they represent a major demographic for the record companies.</p>
<p>But the issues raised and the precedents that may be set in this battle are of considerable and enduring importance. The major record companies are seeing their traditional methods of distributing music challenged, marginalized, undermined, and rendered irrelevant. They see technologies they don’t understand and can’t control. There’s a lot more to this than just goofy kids and record companies.</p>
<p>What these kids are doing with their computers in their dorm rooms may not be piracy, or even theft. What they are doing, however, raises important questions about the nature of the copyright of digital information and the viability of the existing copyright laws to deal with the Internet. Necessarily implicated as well are the structure and the practices and future of not just the music industry, but all information-related industries.</p>
<p>As battle lines have formed and preliminary arguments have been made, I’ve been watching from the sidelines and haven’t yet developed any firm opinions about what’s going on with digital downloads. I’d hoped that in preparing for this presentation I might be able to resolve, for myself, some of the questions raised by all of this.</p>
<p>Not that I’m unbiased. In fact, I am wildly biased against the music industry. I played in a band called “Blotto” in the early 1980’s. For five years we made repeated runs at the “palace gate” of the music industry: the major labels. We released our first home grown record on our own record label in 1980 and our song “I Wanna Be A Lifeguard” got played constantly all summer on commercial radio in New York City and elsewhere, and the music industry said no to us. We couldn’t buy a record deal. We put out another record later the same year with a couple more songs that got played on the radio, and still the record companies said no. Then, starting in 1981, we had three music videos, one right after another, put into rotation on this new thing called Music Television, or MTV. We were touring like crazy, playing in front of thousands of people, and the record companies continued to say no to us. In 1982 one of the largest record labels in the world put us in a recording studio with the Rolling Stones’s producer for a night. We recorded a couple of songs. A week or so later, the label president informed us that his company was “going in a different direction than Blotto,” so we weren’t going to get an offer. We asked the guy to return what we’d submitted to him, so we could use the stuff to pitch somebody else, and he said he couldn’t do it - we were his kids’ favorite band and it would’ve broken their little hearts to part with our stuff. Well, duh?</p>
<p>With these new issues about digital music, much has been said about the arrogance, the myopia of the major labels. My bandmates and I saw it and felt its effects, painfully and firsthand, twenty years ago.</p>
<p>Shortly after this last debacle, we all gave up on the music biz and got “real jobs.” I went to law school, which meant I’d traded being the butt of one set of jokes for being the butt of others. Ah, maybe I should be thanking the music industry for getting me off the road, off the stage and onto a “respectable” career path. Whatever.</p>
<p>But enough self-indulgent whining about personal show-biz failure! If what I say from here strikes you as over-the-top vituperative, well, now you know why. Back to the topic at hand.</p>
<p>What’s happening on the Internet involves “MP3” technology, which facilitates the easy and quick transmission of music over the Internet. MP3 is an audio compression device. MP3 is to music and sound what a zip file or an Acrobat file is to text. Digitized audio information, typically from a CD, is compressed to an MP3 file, to about one-tenth its original file size. While the sonic qualities of the original CD file are compromised, the process provides some useful benefits. The file does not take up nearly as much room on a hard drive, so you can collect numerous songs without jamming up your computer. Additionally and importantly, MP3 files are easily transferable over the Internet. You can attach a song to an e-mail. You can easily download MP3 files from servers found on the Internet and keep a library of songs in your computer. And this trading and collecting of downloadable music has proliferated over the last couple of years with continuing increases in computer memory and speed and the advent of high speed Internet service.</p>
<p>To give you some idea how quickly this technology has developed and spread, in 1994 Aerosmith offered one new song that could be downloaded for free by CompuServe customers, an advance release from a new album. I don’t remember what the format of this was - it was some ancestor of MP3. Depending on things like modem and computer speed, downloading this four minute song took anywhere from thirty minutes to over three hours. The file took up an immense amount of space on 1994-era computer hard drives. Playing the song back was cumbersome, and even more importantly, the playback was, by all reports, lousy.</p>
<p>Today, it takes just a few minutes to load an MP3 file onto your hard drive, and depending on the quality of the download and of your playback system, an MP3 can sound almost respectable.</p>
<p>Parenthetically, I’ve heard it said that an MP3 file rivals the sound quality of a compact disk. This hasn’t been my experience. It stands to reason that when a good portion of the information in a CD file is dumped during the compression process that the compressed result won’t sound as good. While MP3 files are apparently just fine for casual listening for a lot of people, I find MP3s brittle and tiresome.</p>
<p>Nonetheless, in a short time, MP3s have proven incredibly popular. The MP3 format has ascended to prominence very quickly. I started hearing about MP3s about a year and a half ago; today there are millions of MP3 files being transferred every day over the Internet. One telling indication of MP3’s popularity is the fact that the term “MP3” has supplanted the word “sex” as the most popular search term on the major Internet search engines.</p>
<p>Among the revolutionary things about MP3s and other compression programs is this: now every garage band, every fledgling songwriter, has the opportunity to present music to the world over the Internet. Somebody afraid to leave the house can sing into a computer, compress the recording into an MP3 file, and send the song out. There are no longer the traditional, monolithic, and impenetrable barriers of record companies, record stores, and radio programmers necessarily standing between the artist and the listener.</p>
<p>Similarly, and of the gravest concern to the music industry, people can take a favorite song from a CD, put it on their hard drive in the MP3 format and send it over the Internet to friends who can then own a copy of the song without having to buy an entire $15 CD for themselves. And there’s what has the music industry going nuts. If one person can buy the latest CD by, say, Sheryl Crow, and send the Big Hit on the CD to ten friends, now 11 people have Sheryl Crow’s Big Hit based on a single CD purchase. If those ten friends all send the music to ten of their friends, we have a hundred and one satisfied customers. And the record company and the artist have been paid for just one CD.</p>
<p>Now, the concept of sharing purchased music isn’t particularly new. I remember guys from my early 1970s college days with big reel-to-reel tape decks in their dorm rooms, proudly announcing that they weren’t ever going to buy another album, and then asking me conspiratorially if they could maybe borrow my new BeBop Deluxe album for an hour or so. And cassette decks seemed like manna from heaven, until the realization set in that the original records always sounded much better than the cassette copy. And if you tried to make a cassette copy of a cassette copy, well, forget about it.</p>
<p>MP3s, like all digital media, are infinitely and perfectly reproducible - there is no degradation of sound quality in successive copies of the same file. Your friend’s copy of your MP3 will be identical to yours. So will your friend’s friend’s friend’s. So while the concept of making free copies is not new, the idea of infinite numbers of perfect copies zooming around and replicating at cyber-speed is a new twist on an old theme.</p>
<p>This, obviously, does not amuse the record companies. The industry is looking at the creation of a massive, unprecedented, democratic, streamlined, simple, fast, and, most significantly, de-commercialized music distribution system. The music companies have spent millions of dollars and dozens of years to build their distribution system: the pressing plants, the warehouses, the stores. And it’s being bypassed.</p>
<p>And the wagons are circling. The music industry, over the past several years, has experienced unprecedented corporate consolidation. There were some eight major record labels a few years ago; soon there will be only four. This consolidation has resulted in a uniformity in the industry’s response to the perceived dangers lurking on the internet, and a marked lack of creativity in that response.</p>
<p>In addition, this concentration of power has greatly affected the content of the music that the majors have offered to the public. In short, there is less variety and much less volume, in terms of the number of titles and artists, in the music being offered. Artists have been handed their walking papers, dropped by labels that have decided to concentrate on chart-topping, manufactured content providers like Brittany Spears and N’Synch. Any college kid with an ear to the ground of popular music has a favorite band that has gotten the boot. Classical and jazz divisions are being eviscerated. The industry looks less like a vehicle to deliver culture and more like, well, an industry, one devoted to the lowest common denominator and to hell with everything else.</p>
<p>It’s little wonder, then, that the music industry’s cries of righteous indignation about the horrors of the Internet have been met with unstifled yawns and a few snickers of disgust. The industry has made itself into the boogey-man, and music aficionados, especially college kids, could care less whether the industry lives or dies.</p>
<p>A fundamental reason why there is an MP3 phenomenon is that the music industry has failed, refused, to pick up the ball. There is no way to receive the vast majority of major label music digitally over the Internet except for free. Even if you wanted to buy major label music over the Internet, you can’t, because the major labels have yet to offer their music digitally in a downloadable format.</p>
<p>Instead, the music industry has reacted to the MP3 “revolution” in a couple of ways. First, about a year ago, the Recording Industry of Association of America (the RIAA is a music industry association dominated by the major labels) announced the Secured Digital Music Initiative, or “SDMI.” The industry unveiled SDMI with great fanfare, a Manhattan Project-like spectacle in which all kinds of industry people - hardware people, software people, and marketing people - were going to meet in a great orgy of corporate creativity and cooperation. They would figure out how to deal with this Internet thing, the digital distribution of music, the threat posed by MP3s, and so on. The purpose of SDMI was, and purportedly still is, to develop guidelines and standards by which music can be transmitted over the Internet “securely,” that is, in a way that provides the music industry with proper remuneration and that does not allow for copying.</p>
<p>When SDMI was launched in February 1999, the announced goal was that the specifications were going be in place quickly and the software and hardware necessary to download and play digital music would be available to consumers in time for the 1999 Christmas season. It is now April 2000. Not much happening. I looked at the SDMI web site yesterday. While the SDMI organization has issued a couple of general principles about what they think they are doing, SDMI has failed, so far, to set the stage for dictating how the future music business is going to work.</p>
<p>The organization’s website, SDMI.org, contains schedules of meetings and conferences in exotic places, Paris, Hawaii, and Tokyo; subcommittees and sub-subcommittees issuing reports and protocols about this and that. It’s like an ant farm, all of this frantic activity, and an unproductive little ant farm at that.</p>
<p>Despite SDMI and its promise of some brave industry lock-step into the future, one sees from time to time one of the major music companies announcing that they have entered into a “strategic partnership” with some software developer for the purpose of developing some sort of digital music delivery system. Some of these partnerships are explicitly devoted to creating “SDMI compliant” delivery systems (whatever that is supposed to mean), while others are silent about SDMI. And despite these partnerships, and despite the grandiose announcements, nothing of substance has been offered to the public.</p>
<p>What the majors are trying to do, one assumes, is to find a way, somehow, to sell music over the Internet, and to deliver music in such a way that the buyer can’t turn around and zip it off to her friends for free. The majors would love to develop an air-tight system that allows little or no reproduction of the music once it is delivered to the buyer. They would like you to have one copy that you can’t do anything with but listen to in one place, and maybe for a limited number of times. They would like, in essence, stronger control of digital music than they ever had over non-digital music. And, thank God, they haven’t figured out how to do it yet.</p>
<p>There have been some baby steps taken by the majors to enter the digital download market. I read recently that two of the major labels, BMG and Sony, will soon each offer a few songs for digital download in some unspecified “secure” formats. Incredibly, BMG announced it may be selling files in as many as six different digital formats.</p>
<p>These companies intend to charge three or four dollars for each downloaded song. In other words, these labels are planning to charge more for a downloaded song than for the pro-rated value of the song on a CD you can buy in a store.</p>
<p>This is, of course, incredible and ridiculous. With digital downloads the physical packaging and distribution of the music is eliminated - no more stores with surly, uninformed clerks, no more disks, no more annoying clear plastic boxes that tend to break the first time you open them, and no more little fine-print booklets that nobody looks at more than once. The financial transaction and the delivery of the download can be done without human intervention. These things all represent significant cost savings.</p>
<p>The labels, however, have apparently decided that they are somehow justified in charging a premium for an automated digital transfer. And they have also decided that only limited music will be made available and then in a confusing array of formats, each of which will require a different software program, and some of which will no doubt be incompatible with the others. This “effort” hardly rates as serious or even rational and strategic. Unless, perhaps, the game is to simply to stall the technology by generating so much confusion that people will decide to stick with buying trusty CDs for as long as possible.</p>
<p>More telling than the ineffectual SDMI and the anemic attempts to enter the digital download market is that the music industry has aggressively passed laws and filed lawsuits to try to kill new technologies it perceives as threatening. In early 1999, the RIAA sued a small company, Diamond Multi Media. Diamond Multi Media had begun manufacturing this little contraption called a “Rio,” a Walkman-like device for playing MP3 files. You can download MP3 files into the Rio, put it into your pocket, and walk around listening to your MP3s on headphones.</p>
<p>For the music industry, the Rio brought life to the then largely theoretical MP3 threat. With one fell swoop, the MP3 phenomenon was moving beyond computer nerds downloading files and sitting at their computers listening to songs - now it involved something user-friendly and portable. MP3s were no longer exotic ? the Rio represented MP3s going mainstream.</p>
<p>The music industry freaked, sued Diamond Multi Media, and lost. The RIAA based its claims against the Rio on the Audio Home Recording Act of 1992 (AHRA). The AHRA is one of several strange recent amendments to the Copyright Act that the recording industry has force-fed to Congress - this one was ostensibly to stem the tide of the digital audio tape, the late 80’s Big Threat. The AHRA is dense and borderline unreadable, and occupies its own new chapter in the Copyright Code. Unfortunately for the recording industry, the highly technical aspects of the law that were specifically designed to kill digital audio tape technology simply did not apply to the Rio. The District Court threw the case out and the Ninth Circuit agreed. While there is considerable detail to these decisions, the essence is this: the AHRA, designed by the industry and rammed through Congress to stifle a particular technology, was ill-suited to stifle the next technology.</p>
<p>With the Rio case, the RIAA succeeded in little more than providing a huge free publicity platform for portable MP3 devices and increasing public awareness of MP3s in general. RIAA’s lawsuit politicized the MP3 debate, especially on college campuses, and an already suspect industry got a lot of egg on its face.</p>
<p>Following the dismissal of the Rio lawsuit, MP3 players very quickly became available by a myriad of manufacturers in various shapes and sizes; the devices are becoming increasingly more versatile and powerful. Now you can buy, for instance, MP3 players that can hook into your personal stereo and MP3 devices for your car. A hardware industry is off and running, based upon and driven by MP3 technology, and it is completely beyond the control of the major record companies, and wholly antithetical to its interests.</p>
<p>There is a second very recent development, potentially more ominous for the record companies. Last year, a college freshman in Chicago wrote his first computer program, something he hoped would facilitate his ability to trade MP3 files over the Internet with his friends. This program allowed people who had MP3 files on their hard drives to log onto a central web site and mingle with other people who had MP3s on their hard drives. The program allowed people to “meet” online, display their music libraries, and then connect directly with each other to trade MP3 files.</p>
<p>This program was based on a simple and pragmatic idea ? and this college kid conceptualized the program and then ran out and bought a book to learn how to code it. This program is called “Napster,” and there is a website located at Napster.com where you can go and search for particular songs or for particular artists. If anybody on-line at the same time you’re logged on has a song, you can have it, too. The young guy who wrote the program now has corporate officers, business plans, offices in Palo Alto, venture capitalists, and lawsuits.</p>
<p>If the simple idea of MP3s on a little portable gizmo caused concern to the music industry, Napster has caused absolute terror. By its ease of use and its ability to allow huge numbers of people to congregate and download music, Napster has allowed the trickle of MP3 downloads to become a raging river.</p>
<p>An aside: Napster use has become so prevalent among college students that it’s causing problems with university computer infrastructures. The combination of Napster and college systems’ ultra-high speed Internet connections and huge data storage capabilities has resulted in some monumental crashes. College servers are getting jammed by the increased traffic of Napster users, and central storage facilities getting filled with students’ libraries of music. Kids, before they go to bed, sign onto Napster, input their daily wish list of music, and then go to sleep, while their computer dutifully connects with computers all over the world, collecting tunes.</p>
<p>Unlike the record companies, which are concerned about what they consider to be music piracy, college administrators are concerned about the integrity of their computer systems. As a result, some colleges have sought to block student access to Napster.com. These efforts have been marginally successful; given the hacking culture that pervades most college campuses, as soon as some college administrator installs a block, some kid inevitably figures out a way to circumvent the ban, posts the code, and the cycle starts again.</p>
<p>But back to the music industry and its problems with Napster. The RIAA has recently sued Napster, claiming that it is nothing more than a “burglar’s tool” that helps people to “pirate” music files. Music royalty organizations and publishing companies that share in the flow of dollars when CDs are sold or music is publicly performed have joined RIAA’s suit.</p>
<p>The theory of the lawsuit is that Napster, by facilitating this mass and non-commercial trading of music files, is guilty of vicarious, contributory infringement of the copyrights of the owners of the recordings. The industry would like to shut the Napster site down and hold its owners responsible for millions, if not billions, of dollars of penalties under the Copyright Act.</p>
<p>Just last week, the band Metallica started its own lawsuit in San Francisco. Metallica sued not only Napster, but also the University of Southern California, Yale University, and Indiana University for allowing students to use Napster. Lars Ulrich, Metallica’s drummer, said the following upon the filing of their lawsuit: “We take our craft, whether it be the music, lyrics, or the photos and artwork, very seriously, as do most artists. It is therefore sickening to know our art is being traded like a commodity rather than the art that it is.”</p>
<p>Wow! Enter, sandman, and when you do, please bring a dose of humility and a sense of balance for our little friend Lars!</p>
<p>Puff Daddy has also checked in, noting that Napster represented the “ultimate dis of the Notorious B.I.G.” Good Lord.</p>
<p>At the same time, however, a large number of artists, and a larger number of music fans, disillusioned with the music industry and invigorated by the egalitarian potential of the movement of music over the Internet, have voiced their support for Napster.</p>
<p>Despite all of the acrimony and legal ugliness, the basic concept behind the Napster program is universally hailed as brilliant. For example, scientists working on the human genome project announced that Napster technology was exactly what they’ve been looking for as a way to share large amounts of data over long distances.</p>
<p>Even if the industry succeeds in killing Napster in court or otherwise, they will not have won the war. There are other, more ominous, things out there.</p>
<p>Recently, a couple of software designers with America Online developed a variant on the Napster idea, called “Gnutella.” Like Napster, it allows trading of files among individuals. With Napster, however, if you want to participate in the trading process, you have to log onto Napster.com. The Gnutella program, on the other hand, is decentralized ? Gnutella files are available various places on the web, are harder to detect, and one does not need to go to and through a central source to access them. The Gnutella developers posted the code to the program on their website within twenty four hours.</p>
<p>American Online shut down the site, but in that time, hundreds of copies of the code were made by computer geeks around the world. This code is being been collaboratively updated and improved by freelance programmers, much as the Linux operating system has been developed. I suspect that there soon will be Gnutella sites for various types of music, and the program, which I understand is tricky and far from bug-free, will become increasingly user-friendly over time. Gnutella will ultimately be worse for the record companies than Napster ever could be, as Gnutella can grow and develop virally and exponentially, and appears to be impervious to being shut down by legal process. Gnutella and its progeny may well be the music industry’s worst nightmare.</p>
<p>When you add up MP3s, Napster, Gnutella, and everything else, it’s clear that the cat’s out of the bag and rolling in toothpaste that you won’t get back in the tube, even if you were successful in getting it off the cat.</p>
<p>There is one other high profile lawsuit of note right now - in April 2000 - that I should mention: the MP3.com lawsuit. MP3.com is a company that runs a site that allows artists to post their music in the MP3 format, to be either sold online or given away. When music files are sold, the standard deal is that MP3.com splits the proceeds of each sale with the artist. MP3.com seems to be a very well run and wildly successful enterprise, as it facilitates direct access by artists to the public, at virtually no cost, and with no corporate gate-keeper. And it’s all perfectly legit.</p>
<p>MP3.com has not been involved in this piracy-counterfeiting-infringement debate until recently, when the site offered a new service, “MyMP3.com.” For this service, MP3.com bought an estimated forty-five thousand mostly-major label compact disks and loaded them all on to their computers in MP3 format. If you can prove to MP3.com that you already own a copy of a particular compact disk, MyMP3.com allows you to listen to the songs on that disk from MP3.com’s huge database. You can listen to their copy of music you already own.</p>
<p>The announcement of the MyMP3 service brought a firestorm of immediate copyright infringement lawsuits. The music industry would like to detach the fact that you already own and paid for the music from the fact that you happen to be listening to it from a different source.</p>
<p>Well, is this infringement or not? What MP3.com is looking for is something similar to the Supreme Court’s “time shift” decision in the Sony v. Universal Studios case from the early 80’s. The Sony case involved the movie and television studios’ attempt to kill the videocassette recorder, the Big Threat of the late 70s. They failed, quite obviously. The Supreme Court held in Sony that the home taping of movies and television shows was just “time shifting” and not copyright infringement, or more precisely, a fair use of the studios’ copyrights. People tape things from TV to watch later. Nobody gets hurt. There is, in effect, nobody ripping anybody off. What is going on with MyMP3.com appears analogous, but rather than time shifting, MyMP3.com involves space shifting. MP3.com has to convince a court that this is a cognizable theory. This conceptual leap from “time” to “space” may be a little much for a judge, particularly a judge at the trial court level, to make, I don’t know. It will be, in any event, fascinating to see just what type of analysis the court puts on MP3.com’s defense, and whether the Court has any interest in jumping into the conceptual nature of the law of copyright, rather than simply applying a strict and literal interpretation of the law. Such a jump will be necessary, I think, for MP3.com to prevail.</p>
<p>I am not entirely sure that the MP3.com case is going to have the far-reaching, or at least the near-term, effects that the Napster case will have on issues regarding the structure of the music industry, and the ownership of copyrights, and the way people interact with music and the Internet. The issues presented in the MP3.com case are fairly narrow, given the somewhat odd facts of the case. (Somebody actually went and copied 45,000 CD’s? Hey now!). The Napster case, on the other hand, is for all of the marbles.</p>
<p>I’d like to step away from the legal arena and try a little longer view of what’s going on here.</p>
<p>At the opposite extreme from the music industry’s quest to tightly control its copyrighted information are what I’ll call the information libertarians, folks like John Perry Barlow and his organization, the Electronic Frontier Foundation (EFF). EFF’s basic tenet may best reside in the phrase “information wants to be free.” This phrase simply illustrates how intellectual properties are different than other types of property.</p>
<p>If I have a copy of a song and I make a copy for you, I haven’t given up my copy - both of us now can enjoy the song. This is fundamentally different than with physical, personal property - I have a pipewrench, you take it from me; I no longer have the pipewrench, you do. Unlike physical property, information, be it textual, musical, or visual, is typically capable of and tends toward low- or no-cost reproduction. It’s like a gas - if it’s not artificially contained, it gets out. And this is especially true with digital media, which can be perfectly copied an infinite number of times.</p>
<p>This difference is one reason why the conceptual basis for the copyright laws must be viewed as sublimely different than other laws of ownership. And also why copyright ownership has always been leaky and imperfect - a leakiness that may be to everybody’s benefit. In this light, the recent actions of the music industry are attempts to overreach the intent and practical realities of the copyright laws and the (perhaps) natural order of information - to put legal and digital padlocks on information that wants to be free, and to bring ownership of intellectual property more in line with traditional (i.e., greedy) notions of ownership of tangible, physical things.</p>
<p>Related to what I’ve termed the information libertarians (I’ve seen them referred to as “copy-leftists”) are the hackers. Consider a hacker credo, something that appeared a while ago in Wired magazine: “We reject kings and presidents and voting. We believe in rough consensus and running code.” Not exactly anarchy, but not far from it.</p>
<p>Indeed, there are an awful lot of immensely talented people out there writing code and posting programs with this political/personal agenda, who believe in and are motivated by concepts of informational freedom and decry corporate control of just about anything. They believe and intend to prove that the combination of the digitization of information and the inherent ability of the Internet to move the information around detaches the information from the “real world,” and places it in a virtual world where the rules are absolutely and irrevocably different, and where concepts of ownership are secondary to those of access and use.</p>
<p>And a chief reason why this “movement,” if it could even be called that, is imbued with such fervor and passion is the underlying belief that any attempts by the music industry or anybody else to secure or capture digital intellectual property rights for statutory owners will necessarily result in unacceptable assaults on everybody else’s privacy and freedom of speech. We see, for example, the music industry leading the charge and busting MP3-collecting college students for what they have on their hard drives, and we have Metallica, of all people, telling colleges to monitor what students are downloading and thereby control what students are listening to and how they listen to it. We are confronted with a clash of intellectual property rights and personal freedoms. One of these has to give.</p>
<p>Quoting John Perry Barlow from a speech he gave at Harvard earlier this year, “the greatest constraint on your future liberties may come not from government, but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent.”</p>
<p>The people driving these arguments are not, as you probably can infer, people making a stink so that they can download Brittany Spears songs onto their Compaq Presario. These people have larger, more fundamental, and more interesting axes to grind.</p>
<p>For a fascinating and disturbing view I recommend Lawrence Lessig’s new book, Code. Lessig, a Harvard Law Professor, looks at the Internet’s basic structure, its place in society, and the factors that will likely shape the interplay of the Internet, government, and individual privacy in the future. Lessig believes that a likely scenario will be not direct, immediate government intervention, but rather that the commercial sector will be primarily responsible for erosions of personal privacy and freedom on the Internet. If and when things get too out of hand, the commercial sector will ask government to come in to regulate and, perhaps, reshape the Internet - and this regulation and reshaping will have profound and irrevocable implications for privacy and other public policy.</p>
<p>I’ve been reading these theoretical arguments, legal briefs, and articles and trying to decide, both as a lawyer and an artist, what to think, whether my angry failed-artist-thoughts can be reconciled with the presumably rational and dispassionate lawyer-thoughts. A strange thing happened to me a couple of nights ago that has informed my internal debate. I decided that if I was going to stand up here and talk to you about Napster, I’d better familiarize myself with it first hand. So I downloaded and installed the Napster program from Napster.com, and then did what I’m sure everybody who has ever released a recording does next: I typed the name of my band into the Napster search engine. I initially thought to myself, “I wonder if Blotto is getting ripped off? I wonder if people are out there getting these old Blotto songs for free, reaching into my pocket, stealing from me, just like they are stealing from Lars Ulrich? Wouldn’t that be an awful thing?” Then, as I was watching the word “searching” blinking on and off, I had this thought: “What if there’s no Blotto out there? If there’s nobody trading my band’s music? If nobody was ripping me off? Wouldn’t that really suck?”</p>
<p>After a few terrifying seconds, the search revealed that several people had copies of “I Wanna Be a Lifeguard” up and available for download, for all the world to share. And I was thrilled to see the song available. My band’s song was indeed out there, being listened to, moving around. That, to me, was infinitely better than the alternative.</p>
<p>This gave currency to another Barlow concept ? that the law of supply and demand doesn’t necessarily apply to information - that information becomes more valuable the more of it that’s out there moving around. Looking at those postings of Blotto songs on Napster, I realized he’s right. Blotto, the entity, the band, has more inherent value, I think, given the fact that Blotto songs were available on Napster. The number of songs available and the number of times people downloaded the songs were an indication of the songs’ and the band’s value to people. The problem becomes, then, how do we realize something like money out of this inherent value ? especially since the direct flow of dollars from the sale of music is being subverted?</p>
<p>Good question! For starters, if there are more people listening to Blotto because of Napster, I’m not going to lose a lot of sleep just because I’m not getting my 5 cent mechanical royalty every time somebody downloads a copy of one of our songs. Maybe people finding a couple of Blotto songs on Napster will have their curiosity piqued enough that they will go out and buy a Blotto CD. Maybe they’ll be more inclined to come see us play live somewhere. Maybe they’ll like a song enough that they’ll cover it in their own band, have a big hit, and make us rich. Unless of course, the popularity of their version of our song is by virtue of Napster. Oops. These are, of course, a whole lot of maybes, and maybes don’t pay the rent.</p>
<p>So what’s the answer? How do we define, to use the lexicon of those dot-com multi-zillionaires (at least they were multi-zillionaires ‘till 11 a.m last Friday when the market tanked), a business model for digital information, a way to realize and harness the inherent value of the exploding distribution of information? And how do we do it in a way that’s fair to copyright holders and insures ready and cheap access to everybody?</p>
<p>To the extent the music industry deigns to allow music on the web, its preferred method appears to be to charge for music on a pay as-you-go basis, with some locked-down security measures. Maybe music will come to you in encrypted digitized code that will self-destruct after one listen, like that little cassette at the beginning of the Mission Impossible TV show. Maybe you’ll be able to listen to a song four times before it disintegrates (it will count the plays for you!) Maybe if you try to copy the music you just bought or try to send it to a friend the music will just blow up. Maybe there will be what’s called a “watermark” on the digital file, and some way for the record company to trace and follow copies as they move around the Internet, and if your copy goes to too many places the Art Police will come after you and take your computer away and put you in Art Jail. Maybe certain compression programs will simply be outlawed, giving the Art Police more things to do and making the Art Jails even more crowded with people found in possession of the wrong computer program.</p>
<p>None of these alternatives strikes me as particularly appealing. I don’t know about you, but I want my music when and where I want it, period. I want it in my bathroom, I want it on my bedstand, I want it when I’m walking my dog, I want it in my car, and I certainly do not want to think about paying digicash to some corporation every time I listen to a song. I want the music to be transferable, I want to be able to bounce it from format to format, make copies for friends, and I don’t want anybody to tell me that I can’t.</p>
<p>Sure, somebody should make some money somehow in the sale of digital music, but how and how much? Some of the rhetorical defenses of Napster involve a general condemnation of the way record labels do business. Which I can certainly empathize with. I guess the rationale is that since these companies have been ripping us off for so long, MP3s and Napster as a means of payback are morally justified.</p>
<p>There is also the sense that major record companies have gamed the system by ramming laws through Congress like AHRA, the Digital Millennium Copyright Act of 1998 (DMCA), and, perhaps most onerously, the Sonny Bono Copyright Term Extension Act of 1996, which extended the length of copyright ownership by twenty years. (The Sonny Bono law was reportedly put in place at the behest of Disney, because the first Mickey Mouse-related copyrights were running out) These laws all tighten and strengthen the ownership of information, to the detriment of everybody else.</p>
<p>Another argument is that the very notion of being paid for making music is out-of-date, and that the whole idea was an aberration to begin with. Certainly, modern notions of copyright are only as old as recorded music itself - something less than one hundred years. Why should we assume these things are permanent, why accept that these things should be here forever, or even for another minute? Maybe it’s time to dump the ownership and royalty paradigm. Isn’t making music its own reward?</p>
<p>College kids are aware of this stuff; I have looked at on-line chats on the Internet and what is being discussed is this perceived corruption in and by the music industry, with an ultimate awareness of how little music company revenue actually makes it down to the artists whose music is being sold. The bottom line for these kids using Napster comes down to: “why shouldn’t we rip the record companies off?” and “we aren’t ripping the artists off because the record companies have already taken care of that.” I get a sense of “I want my MP3s, this is our Napster, and these big companies can go stick it.” And the fervor of these feelings suggests that Napster occupies much the same place in the hearts and minds of collegiate America that Vietnam occupied in the late ‘60’s.</p>
<p>Even more fundamentally, kids argue that this is their music and this is their culture. This is their social fabric, the sound track of their beings, and they don’t want four or five large corporations dictating to them how their music can be used, how they can get it, and how they have to pay for it.</p>
<p>One solution has been floated that music be distributed for free and that artists find peripheral ways to make money, such as touring, selling t-shirts, or getting corporate endorsements. In other words, we abandon much of copyright law because it just doesn’t make sense anymore in this brave new digital world, and we let other forms of commerce pick up the slack.</p>
<p>There are certainly models for this out there; the artist Moby has made a lot more money licensing his work for use in commercials and movies than he’s made selling records. Bands can make money from live performances. The Grateful Dead, for example, never sold huge amounts of records. They didn’t need to - they could announce a show at any stadium in the world and sell it out in a heartbeat. Touring these days is particularly lucrative when there’s a corporate sponsor underwriting the tour.</p>
<p>There are huge problems with this, of course. Taking away an artist’s ability to profit from the popular consumption of digital art, be it musical, visual, or literary, forces an artist to be something other than an artist in order to make a living. Finding some other way to make a living implies that the artist must then become, to some degree, a huckster, a carnival barker. The artist must publicly perform or sell t-shirts or cozy up to a corporation to make money. The artist must shape the art to fit these ancillary purposes.</p>
<p>Some artists don’t or can’t or shouldn’t have to do these things in order to get by. While many musicians already have this ancillary income thing down, it’s not a universal talent and it sure doesn’t follow naturally from being a song-writer or musician. And this is particularly unworkable in the literary context. Digital literary materials present the same troublesome copyright issues as music; like music, books can be easily copied and distributed over the web. So maybe writers should go and do readings, sell t-shirts, find some advertisers to pay for banner ads next to the online text, or sell their reader lists to some direct marketing outfit. Is there any real money in this? I’m not likely to wear a David Foster Wallace t-shirt; well, not very often. I really don’t think I’d regularly go and see some guy read his novel. Last year Don DeLillo, one of the great fiction writers, did a reading at the SUNY-Albany Writers’ Institute. His books are brilliant - him reading from them was God-awful. DeLillo certainly is not going to make his living traveling around doing dog and pony literary shows. And I suspect he wouldn’t sell many t-shirts, either. And he shouldn’t have to. He should be home writing, that’s what he’s good at, and that’s all he should have to do. That should be enough. And he should get paid for it.</p>
<p>So, again, what are the answers? First, are we talking about crimes here, about music piracy? I think not. It’s not piracy. It’s more like a mutiny, a mutiny against the large music companies’ modus operandi by their most important demographic of customers.</p>
<p>If there is really any piracy in the air here, however, it’s the piracy of the copyright code by the major corporate entertainment interests, which have leaned on Congress and corrupted the federal Copyright Act to secure control over information and to stifle new technologies. They have introduced concepts and elements into the Copyright Act that have little to do with the underlying basis and reasons for the Copyright Act. And this is all part of a massive information grab that has been hastened by the Internet and the steadily increasing dominance of Big Media.</p>
<p>And while I certainly do not have an answer to how the artist is going to get paid for the sale of digital media, I will voice my vote that artists should get paid somehow. And so while I despise the big record companies and their heavy-handed tactics, I can’t say that they’re completely wrong. They are certainly more wrong, I think, than the EFF and the hundreds of thousands of college kids gleefully downloading songs every day. So, as with any good controversy, the answer, is lurking somewhere in the middle - if there is an answer. I could be equally confident and comfortable arguing this debate on either side, although I’d be a lot more passionate and persuasive arguing against the music industry’s interests. And I’d have a lot more fun doing it.</p>
<p>I’m not ready to chuck notions of copyright just because a means exists for mass reproduction and distribution of intellectual property. In general, I think that people need to get paid for the things that they create, which is one (but certainly not the only and probably not even the most important) reason why people create in the first place. And the money incentive to encourage the creation of art is the primary reason for copyright laws to begin with, as the Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” So my head, to some small and embarrassing degree, sides with the music industry. However, my heart certainly goes out to the kids, the hackers, and the computer geeks out there valiantly challenging an entire industry, a bloated and arrogant industry that needs to answer the wake-up call of the digital age.</p>
<h2>postscript</h2>
<p><span class="emphasis">Well, we used to love Napster, but it’s all over now. Various forces, all related to and/or driven by the RIAA’s lawsuit, have succeeded in killing it ‘til it’s dead. As I write this, Napster is completely off line - supposedly in order to post a new Napster program that contains some sort of digital fingerprint technology, that analyzes the audio characteristics of every song being traded, and blocks those recognized as being off-limits for free trading. This is the audio equivalent of another interesting initiative that was quietly tested at the Superbowl last January, in which cameras at the turnstiles allowed real time comparisons of the facial characteristics of passers-by to those in a database of bad guys. Lenin would be proud. Ecstatic.</span></p>
<p><span class="emphasis">Even this bastardized Napster may never see the light of day, as Judge Patel made an insane ruling this week that this new filtering process needs to be provably 100% accurate. Appeals have been filed, but it’s a lot of scurrying about nothing. I’m not sure anybody cares anymore.</span></p>
<p><span class="emphasis">Napster’s been over for a while, starting last November when it was announced that it was cozying up with major label Bertelsmann. Since then, Napster has slowly but deliberately moved away from peer-to-peer trading and toward becoming a brand for major label subscription-based downloading. Which has nothing at all to do with Shawn Fanning’s earth-shaking invention, but is probably a welcome development for the venture capitalists who floated Napster in the first place. They’ve got a brand! They’ve got a new new product! They might even have some cash-flow!</span></p>
<p><span class="emphasis">But the new Napster may ultimately fail. Napster has certainly been abandoned by its core constituency, the college computer cognoscenti. And judging by the numbers of Napster users logged on just before it shut down last week, it’s been abandoned by pretty much everybody else, too. Yesterday’s announcement that the company settled with Metallica strips it of any shred of street cred Napster still possessed. Napster is suffering, or will soon, from the “Peter Frampton Syndrome”, a victim of its own massive popularity and subsequent embarrassing hubris and betrayal of those who made it what it is. Let’s put it this way: no self-respecting college student in America would be caught dead wearing a Napster T-shirt today.</span></p>
<p><span class="emphasis">The flight from Napster appears complete. The big roll-outs of major-label related subscription services, including Napster’s (which is supposed to begin this summer, but nobody’s holding their breath) will be marginally successful. And the slick, sealed tuna sandwich faux-hip marketing efforts that will announce the roll-outs will be truly duplicitous and sickening, given what’s gone down.</span></p>
<p><span class="emphasis">So it’s up to the renegades out there to keep the flame burning - I read every week or so that some new program is available (the most recent being Gnucleus, which facilitates downloads over Gnutella-based networks, or something). The intrepid and smart can still find anything available somewhere on the Internet for free ? and it’s probably only a matter of time before a ubiquitous and easy system of locating and downloading music files for free emerges. And this time it won’t be a sitting duck for the RIAA’s shiny corps of lawyers. And it will spread like wildfire. And then we’re off to the races again.</span></p>
<p><span class="emphasis">Albany, New York</span><br /><span class="emphasis">July 14, 2001</span></p>
</div></div></div><div class="field field-name-field-tags field-type-taxonomy-term-reference field-label-above"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/law">law</a>, <a href="/tags/napster">napster</a>, <a href="/tags/mp3">mp3</a>, <a href="/tags/gnutella">gnutella</a>, <a href="/tags/gnucleus">gnucleus</a>, <a href="/tags/moby">moby</a>, <a href="/tags/grateful-dead">the grateful dead</a>, <a href="/tags/mp3">mp3</a>, <a href="/tags/district-court-judge-patel">district court judge patel</a>, <a href="/tags/shawn-fanning">shawn fanning</a>, <a href="/tags/music-piracy">music piracy</a>, <a href="/tags/copyright">copyright</a>, <a href="/tags/blotto">blotto</a>, <a href="/tags/i-wanna-be-lifeguard">i wanna be a lifeguard</a>, <a href="/tags/sdmi">sdmi</a>, <a href="/tags/metallica">metallica</a>, <a href="/tags/lars-ulrich">lars ulrich</a>, <a href="/tags/puff-daddy">puff daddy</a>, <a href="/tags/sony-v-universal-studios">sony v. universal studios</a>, <a href="/tags/john-perry-barlow">john perry barlow</a></div></div></div>Tue, 31 Jan 2012 16:25:05 +0000EBR Administrator639 at http://www.electronicbookreview.com